Tag: law

By Loyiso Sidimba for IOL

Foreign nationals living in Gauteng will soon be barred by law from doing business in the province’s townships unless they obtain permanent residency status.

The Gauteng provincial government wants to stop foreign nationals from operating some businesses in the townships as part of plans to revitalise the economy in a number of the region’s most densely populated areas.

A proposed new law drafted by the Gauteng economic development department and premier David Makhura’s policy unit will reserve certain economic activities in townships for South African citizens and people with permanent residency status.

The draft Gauteng Township Economic Development Bill released this week does not identify the specific businesses it is targeting.

However, the proposed law will only assist township-based enterprises in agriculture, construction, manufacturing, transport, communications, tourism and services if they are owned by South African citizens or holders of permanent residency status.

Stakeholders making submissions on the bill will have to suggest the sectors and sub-sectors that should be reserved for South Africans and permanent residents.

Permanent residency is obtained by foreign nationals who have been residing in the country on the basis of their work permits for a minimum of five years, their spouses and the dependants of South African citizens/permanent residence permit holders.

It can also be obtained by foreign nationals who intend to establish a business in the country and are financially independent, among other criteria.

According to the draft bill, there will be a percentage of provincial government procurement set aside for township-based enterprises.

The proposed law will also establish specific procurement rules and programmatic support to allow the government and its main contractors to buy from a large group or groups of township-based enterprises.

The government’s contractors will be compelled to spend a certain percentage of their procurement budgets on town-based enterprises, entrepreneurs and co-operatives.

A year ago, Justice and Correctional Services Minister Ronald Lamola revealed that the government was developing tough legislation to prevent foreign nationals from operating in certain sectors of the economy but denied that this was protectionism.

At the time, Lamola said his small business development counterpart, Khumbudzo Ntshavheni, was “developing legislation in relation to foreign nationals doing business in our country and which sectors of the economy they can play in, where and how.”

He assured foreign nationals that the country was not about to “wake up” and have a massive deportation of Zimbabweans, Mozambicans and Lesotho nationals.

However, Lamola said that there was a need to put in place legislation to in order to strike a clear balance that will help the government to grow the economy for the benefit of everyone, but still enable it to set aside some sectors that need regulation, and for it to be clearly stipulated that these are for local citizens.

Gauteng Premier David Makhura, at the time of advocating for relaxations to lockdown, warned of massive job losses in the province due to the Covid-19 pandemic, warning the economic impact would be more than at first anticipated and have a ripple effect across the whole economy.

Meanwhile, a march held in Pretoria this week against foreign nationals – targeting specifically Nigerians and Zimbabweans – has been condemned by the Centre for Human Rights at the University of Pretoria.

The march organisers protested about illegal migrants and drug trafficking, but the centre’s Professor Frans Viljoen said this kind of march underlined the need for government to cultivate social cohesion between South Africans and foreign nationals.

“It is evidently wrong to target people from particular countries or label them as criminals, drug dealers or persons responsible for the social ills in the country,” he said.

“Such rhetoric only seeks to reinforce xenophobic and populist narratives, from which South Africa strongly distances itself, both constitutionally and in the 2019 National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances.”

Gauteng is currently home to the highest number of foreigners in the country.

By James de Villiers for Business Insider SA

Media law experts believe WhatsApp admins in SA may be held liable for false information shared on their groups.

However, they would need to know that the information being shared is false, and do nothing about it.

Knowingly sharing fake news is a crime subject to 6 months imprisonment under SA’s Covid-19 disaster regulations.

Administrators of WhatsApp groups in South Africa may be held criminally liable if fake news is shared in the group, but only if they are aware that the information being shared is incorrect.

Under South Africa’s coronavirus disaster regulations, spreading false information, colloquially known as fake news, about the novel coronavirus and Covid-19 with intent to deceive is a crime with up to 6 months imprisonment.

PPM Attorneys communications lawyer Lucien Pierce believes Whatsapp group administrators who were aware that false information is being shared may also be held liable.

Pierce said the disaster regulations, however, make it clear that the fake news has to be spread with malicious intent, and therefore the administrator will have to know that the information being shared is false.

“Many people, like my mom, share many things during the course of a day which is false but which they do not know is false, and they, therefore, cannot be found liable,” Pierce told Business Insider South Africa.

“The same is true for an administrator: they would have to know that the information being shared is false. If they do not correct the information, or do nothing to stop it, they can then be held liable.”

Von Seidels copyright lawyer Salomé le Roux explained that a precedent has been set in South Africa where a court held a person who was tagged in a defamatory Facebook post jointly liable for the defamation in the post.

She said the ruling meant that anyone who participates in the publication or is part of the “publication chain” of defamatory material – or, under the disaster regulations, spreading of fake news – can be held liable.

A WhatsApp administrator is deemed to part of the “publication chain” as they are deemed to have created the group and has control over who is added and what is posted there, Le Roux told Business Insider South Africa.

“If someone [therefore] posts something defamatory [or false] and the WhatsApp admin sees it and does nothing, it is the same as if he was tagged on a defamatory Facebook post, but did not remove the tag and remains associated with the post,” Le Roux said.

Webber Wentzel media law expert Dario Milo said it is highly unlikely that someone will be held liable as the intent to deceive needs to be proved.

“[Only] once an administrator has knowledge that someone has posted fake news, and does not act to remove it from the group, he or she will be at risk of contravening the [disaster] regulation,” Milo said.

Source: LabourNet

According to the promulgation of the amendments to the Unemployment Insurance- and the Basic Conditions of Employment Acts during 2019, parents are now entitled to take ten (10) days Parental Leave per annum.

Payment for the aforementioned leave can be claimed from the Unemployment Insurance Fund. Such payment will be determined by the Department of Labour. Employers are therefore not legally obliged to pay employees for time off due to Parental Leave. The payment for Parental Leave is therefore similar to that of unpaid Maternity Leave as regulated by the Basic Conditions of Employment Act.

Parental Leave will apply to all employees who do not qualify for maternity leave. These employees will be entitled to ten (10) days unpaid Parental Leave when their child is born or when an adoption order is granted.

In cases of adoption of a child under the age of two (2) years, the adoptive parent will be entitled to ten (10) weeks of Adoptive Leave (two months and two weeks). Where there are two (2) adoptive parents, the one will be entitled to ten (10) weeks Adoptive Leave and the other will be entitled to ten (10) days Parental Leave.

In the event of a surrogacy agreement, the one parent will be entitled to ten (10) weeks Commissioning Parental Leave whilst the other will qualify for ten (10) days Parental Leave.

Employers are advised to amend their leave policies and/or clauses in their contracts of employment dealing with leave to include the aforementioned. Failure to do so will not revoke the entitlement to parental leave but will automatically incorporate it into the contract by virtue of the amendment to legislation.

The City of Cape Town has published its amended traffic by-laws for public comment.

If passed, changes will include:

  • Strict new rules on using smartphones while driving will be applied
  • Mobile phones may be impounded (rather than be destroyed or auctioned off) if a motorist is caught using a handset while driving
  • Confiscated phones may be donated to neighbourhood watches, NGOs, or non-profit organisations
  • Motorists will have a number of opportunities to get their phones back first

Be wary of recorded conversations

Contrary to popular belief, companies may be within their rights to secretly record conversations with employees and use that information against them in a court of law. However, the reverse is also true.

Nicol Myburgh, Head of the Human Resource Business Unit at CRS Technologies, says this has the potential to significantly change the dynamic in the workplace.

According to Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), it is not illegal to secretly record a conversation you are party to. But it is still illegal to do so as a way of intercepting communications to commit an offence, for example obtaining a person’s bank account information.

“The argument that recording these conversations infringes on an employee’s (or employer’s) right to privacy is outweighed when using the recording in court is in the interests of justice. Of course, there is nothing prohibiting the addition of an explicit clause in employment contracts that mitigates against the risk of having communications intercepted.”

Technology has made it incredibly easy to record conversations without other parties being aware of it. Most smartphones and tablets come standard with audio recording features, making it virtually undetectable when somebody runs the app and puts the phone or tablet out of sight.

“Often, these conversations can be used as evidence in disciplinary hearings and other disputes even before they go to the CCMA or court. Further complicating matters is that courts do not hold privacy rights as absolute. Instead, they take other factors into account that can trump privacy rights.”

An example of this is in Harvey v Niland, where evidence was obtained by hacking into the respondent’s Facebook account. Evidence can therefore be presented in various forms and not necessarily only in the form of an audio recording.

Nevertheless, it remains in the best interests of either party to obtain recordings legally. From an employer perspective, fair process must be followed, with the employee being given an opportunity to respond to the evidence presented against them.

“From a legal perspective, it should also be noted that either party can record a conversation that they are part of. But if you are a third party, you need informed consent from one of the other parties to legally record that conversation. It is often this consent that confuses people into thinking all parties must agree to have a discussion recorded.”

Of course, if the recording is inaudible then it cannot be admissible. Myburgh says that employers or employees therefore need to ensure that the audio can be heard, and that the data is stored in a safe place to avoid it being lost, deleted, or edited in a way that will also make it inadmissible.

“Companies are operating in a dynamic, technology-driven environment. It should always be assumed that any conversation or meeting will be recorded, like assuming all work email will be read by a supervisor. In this way, both the employee and employer can ensure no mismanagement takes place.”

You could be jailed for lying on your CV

By Tom Head for The South African

The National Qualifications Amendment Bill is not here to play, ladies and gentlemen. The adjustment to the existing legislation comes with some pretty stern updates, which aims to clamp-down on dishonesty from applicants who embellish the truth on a CV.

The South African Qualifications Association (SAQA) will be charged with monitoring the registered qualifications of each citizen in South Africa. That’s quite the task for such a modest regulatory body, but the ANC has voted the move through in Parliament.

What is the National Qualifications Amendment Bill?

Cyril Ramaphosa now has the final say on what happens next – it’ll be his decision on whether the government should plough ahead with the proposals should they remain in power after Wednesday 8 May.

The bill isn’t likely to impact working-to-middle class workers too much, but it will serve as a deterrent to citizens applying for high-profile jobs. Executives, CEOs and even our politicians will be subject to rigorous background checks. If they are found to be lying about their educational history, stiff penalties await:

“Any person convicted of an offence in terms of this act is liable to a fine or to imprisonment for a term of no longer than five years, or to both a fine and such imprisonment.”

“Any person, educational institution, board member or director may be ordered to close its business and be declared unfit to register a new business for a period not exceeding 10 years.”

Lying on your CV could soon be a serious legal issue

The punishment is not retroactive – so if your name is Jacob Zuma or Hlaudi Motsoeneng, you can breathe a sigh of relief. But if Ramaphosa decides to give this the green light, you may well have told your last porkie on a resume.

As IOL report, 97 national qualifications and 95 foreign qualifications were misrepresented between last October and November. That increased the total number of fraudulent applications up to 1 564 over the past 10 years.

The bill also aims to publish a “name and shame” list for those who try and push their luck just a little too far. So, if your CV is looking a little bare at the moment, try and think outside of the box – and not outside of reality.

 

By Marelise van der Merwe for Fin24

A coalition of artists, writers and publishers has written to Trade and Industry Minister Rob Davies to challenge the Copyright Amendment Bill, due to be adopted by the National Council of Provinces on Wednesday.

The coalition comprises writers, book and music publishers, film directors, producers, musicians, performing artists, film and television workers, content creators and business people.

These include representatives from heavyweights like Kagiso Media, NB Publishers, Sony, Warner, Universal, Juta, the Recording Industry of SA, the Independent Black Filmmakers Collective, Media24 Books, DALDRO, the Music Publishers’ Association of SA, the Visual Arts Network of SA, the David Gresham Entertainment Group, the Academic and Non-Fiction Authors’ Association of SA, Sony/ATV, Shuter & Shooter, the Publishers’ Association of SA (PASA), and Pearson SA.

The Copyright Amendment Bill seeks to update South Africa’s four-decade-old copyright law. The Department of Trade and Industry argues it will protect authors, composers, artists and other professionals in the publishing sector, and that it will improve access to educational materials. It has also previously argued the Bill will address a lack of formalisation in the creative industry.

‘Devastating’

However, the coalition’s letter, published in the Sunday Times on March 17, says the Bill has deviated from its “commendable” goals and now carries “unintended negative consequences”. The letter lists six key concerns about the Bill, calling it potentially “devastating” to the creative industry.

“You have stated in correspondence to some of our member organisations that ‘the cost of procuring educational material in South Africa is very high, therefore flexibilities will be incorporated with teaching exceptions,'” the letter states.

“Our concern is that these ‘flexibilities’ or exceptions from copyright protection will have a devastating impact on the publishing industries.”

Job losses, revenue nosedive

The Bill will lead to job losses, the writers argue, as academic publishing becomes less financially viable, forcing publishers to close. The letter cites an impact assessment by PwC and PASA which found that 1 250 jobs – nearly a third in the industry – would likely be lost due to implementation of the Bill.

The same report, though this is not mentioned in the letter, found that the Bill could see a 33% decrease in sales, equivalent to R2.1bn, plus a decrease in exports of local titles.

The letter argues there will be an additional impact on the film industry, which – according to an National Film and Video Foundation report – in 2017 raised its level of production by over R12bn.

Another concern, according to the letter, is the impact on satellite industries, as the Bill will mean limited revenues for costly projects. “This will have a knock-on effect, damaging the numerous service industries that support productions, especially in the Western Cape.”

The Bill also creates “uncertainty around ownership and royalties” by permitting free re-use and therefore threatening production investment, the letter adds.

According to the missive, the Bill is “vague and imprecise”, and will need to be tested in courts over several years “requiring content creators to fight to defend rights that should be theirs automatically”, which will be costly and time-consuming.

Even where jobs aren’t lost, the Bill will cause loss of income to working creatives, the coalition says. “This will remove the incentive to write, produce and publish works, since the Bill allows [work] to be copied and republished with impunity, often free of charge.”

Big tech companies will cash in

Related to this is concern over the benefit to international tech corporations, who – according to the coalition – will be able to access and republish creative and research work without having to pay fair royalties or usage fees, and then monetise this content by licensing it or selling advertising around it, without the original creators seeing a cent.

Lastly, the writers say, South Africa’s body of knowledge will be reduced rather than increased. “When the publication of academic writing and research no longer pays, South African writers will stop writing, and publishers will stop publishing. This will mean less South African publishing will be available,” they argue.

“Imported foreign material will fill the gap, leaving our students to learn generic ideas from the global north, not strictly applicable to the African and South African situation.”

Dismissals require relevant evidence

By Ivan Israelstam, chief executive of Labour Law Management Consulting 

Even if an employee has committed murder, dismissal will not be upheld by the CCMA or a bargaining council where there was insufficient evidence brought to prove guilt.

Providing convincing proof of guilt is a factual and skilful exercise requiring:

  • Testimony that is not contradictory;
  • Evidence that, after having been challenged by the accused employee, still holds water;
  • Documents that are validated and that clearly show up the employee’s misconduct;
  • Evidence that is corroborated by other evidence;
  • Testimony from credible witnesses;
  • Evidence derived from thorough and honest investigation; and
  • Evidence that makes the truth look like the truth.

Thus, proving one’s case depends on the bringing of evidence that will persuade the presiding officer that one’s allegations or claims are true and genuine.

However, it is not enough to bring strongly supported or incontrovertible evidence. Parties need to further ensure that the evidence they bring is relevant to the case.

For example, if an employer wishes to convince an arbitrator that an employee stole petty cash it is pointless for the employer to bring solid proof that the employee’s work performance is poor because this is irrelevant.

At the same time it is most infuriating for parties who have gone to the trouble of collecting genuine, solid and relevant evidence only to see the arbitrator ignore this evidence.

Fortunately the parties do have recourse to the Labour Court if a CCMA arbitrator disallows or ignores relevant and legally permissible evidence in making his/her award.

It is not always easy for the presiding officer to decide if evidence is relevant or not because:

• the presiding officer may nor be properly trained to be able to understand what is and is not relevant.

• of lack of clarity of the evidence itself.
• the evidence may only be indirectly relevant to the case. For example, the employee may have been dismissed for poor performance of his/her work. However, the employee might tell the arbitrator that the employer has been victimising him/her for weeks on end. While this seems, on the surface, to be irrelevant, the employee may be able to show that it was the victimisation that caused the poor performance or that the poor performance allegations are false and are part of the victimisation campaign.

It is therefore crucial that parties ensure that they bring their evidence in such a comprehensive, clear and persuasive manner that it cannot be ignored by a fair arbitrator or disciplinary hearing chairperson.

The President signed the National Minimum Wage Act into law on 23 November 2018.

In terms of this Act, all employers, irrespective of which industry they are operating in, must pay at least the minimum wages as set out below:

R 15.00 per hour for domestic workers;
R 18.00 per hour for farm workers; and
R 20.00 per hour in respect of all other employees.

The effective implementation date for these wages have not yet been promulgated but all indications are that it will become effective on 1 January 2019.

Exemptions
Although the Act makes provision for employers to apply for exemption from the minimum wage, it is clear from the draft exemption regulations that the Department of Labour is simply paying lip service to this principle.

The maximum exemption an employer will be able to qualify for will be a 10% reduction on the prescribed minimum wage, which will only be granted for a year, and which will be adjudged on the employers’ profitability, solvency and liquidity. This outcome hardly seems worth the effort taking into account the inevitable red tape that will accompany the application.

South Africa adopts Cybercrime Bill

Source: South Coast Sun

Parliament’s Justice Committee officially adopted the Cybercrimes and Cybersecurity Bill last week. The Bill is aimed at bringing South Africa in line with other countries’ cyber laws and the threat of cybercrime, and it has introduced new laws regarding ‘malicious’ electronic communication.

BusinessTech outlined these proposed new crimes below:

* Any person who contravenes one of the following provisions is liable on conviction to a fine or to imprisonment for a period not exceeding three years, or to both a fine and imprisonment.

* A message which incites damage to property or violence.

* Any person who unlawfully makes available, broadcasts or distributes by means of a computer system, a data message to a person, group of persons or the general public with the intention to incite:
(a) the causing of any damage to property belonging to; or
(b) violence against, a person or a group of persons.

* A message which threatens persons with damage to property or violence. As an extension of the above, the Bill also makes it an offence to distribute messages which threatens a group of people with violence, or with damage to their property.

The Bill clarifies that ‘group of persons’ means characteristics that identify an individual as a member of a group. These characteristics include without limitation: Race; gender; sex; pregnancy; marital status; ethnic or social origin; colour; sexual orientation; age; disability; religion; conscience; belief; culture; language; birth and nationality.

* A message which unlawfully contains an intimate image.

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