Pty Ltd Research Articles

Secrecy of Taxpayer Information and the Disclosure thereof by an Order of Court in Terms of the Tax Administration Act 28 of 2011 and the Promotion of Access to Information Act 2 of 2000

The secrecy provisions of the Tax Administration Act 28 of 2011 (hereinafter, the TA Act) provide that taxpayer information may generally not be disclosed by the South African Revenue Service (hereinafter, SARS). One of the exceptions to the preservation of secrecy is when a court orders disclosure following an application regulated by secs. 69(2)(c), 69(3), 69(4), and 69(5) of the TA Act. This article considers this exception to taxpayer secrecy in terms of the TA Act, with a focus on the circumstances provided in sec. 69(5) of the TA Act, which must be met before the court may order disclosure. This is done by first considering the previous provisions relating to secrecy and the exception thereof by an order of court found in, for example, the Income Tax Act 58 of 1962, which applied before the commencement of the TA Act. The case law on the previous provisions and the more recent cases on the TA Act secrecy provisions are analysed. This article also considers the disclosure of taxpayer information by a court in terms of the Promotion of Access to Information Act 2 of 2000 (hereinafter,the PAI Act), in light of the recent finding by the Constitutional Court in Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others.1 In this case, the majority of the court declared certain provisions of the PAI Act and the TA Act constitutionally invalid, which results in the mandatory disclosure of taxpayer information when it is in the public interest, as contemplated in sec. 46 of the PAI Act. The PAI Act, in addition to the TA Act, now allows for a court order to disclose information in terms of the public interest procedure if access was refused by SARS. This begs the question: What is the interaction between a TA Act court order to disclose taxpayer information and a PAI Act court order to disclose taxpayer information if the requirements ofsec. 46 of the PAI Act are applicable and if access was refused by SARS?

A consideration of the Registrar’s powers in matters relating to the National Credit Act: An analysis of Gcasamba v Mercedes-Benz Financial Services (Pty) Ltd and Ngandela v Absa Bank Ltd

Section 23 of the Superior Courts Act 10 of 2013, read with rule 31(5) of the Uniform Rules of Court, empowers the Registrar of the High Court, save in exceptional circumstances involving residential property, to grant default judgments. The purpose of this rule is to prevent the overburdening of the court roll and judicial workload by allowing Registrars the discretion to grant default judgments in uncomplicated, undefended matters. In recent judgments in Gcashamba v Mercedes-Benz Financial Services SA (Pty) Ltd & another 2023 (1) SA 141 (FB) and Ngandela v Absa Bank Ltd & another [2023] ZAECELLC 6, the courts both found that a Registrar is not empowered to grant default judgments in matters relating to the National Credit Act 34 of 2005. The question thus arises whether the National Credit Act has changed and effectively reduced the Registrar’s powers. The implications of these judgments are far-reaching. Not only do they appear to have lessened the powers of the Registrar, but they also have the effect of increasing the administrative workload of judges and potentially delaying the enforcement process of credit agreements subject to the National Credit Act.

Notes: Revisiting Uber Drivers as Employees — Comparing South African and UK Law

The UK Supreme Court in the case Uber BV v Aslam [2021] UKSC 5 recently held that Uber drivers in London were workers for the purposes of inter alia minimum wage regulations. In South Africa, the Labour Court in Uber SA Technology Services (Pty) Ltd v National Union of Public Service & Allied Workers (2018) 39 ILJ 903 (LC) (Uber SA) held that the Commission for Conciliation, Mediation and Arbitration (CCMA) had erred in finding that South African Uber drivers were employees of Uber SA. This note compares the two cases, as well as considering the distinction between ‘employees’, ‘workers’ and ‘independent contractors’.

Notes: Strikingly Misconceived: National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) (2019) 40 ILJ 1957 (CC)

In this case note I endorse the conclusion reached in Dunlop but quarrel with the reasoning by which it was reached. In particular, I think the treatment of the duty of fidelity, reciprocally owed by each party to the other under the employment contract, was thoroughly misconceived.

Taxpayer confidentiality versus access to information, freedom of expression, and the public interest in the tax affairs of a state president

It is trite that taxpayer information is confidential in South Africa, subject to a few narrow exceptions. In the judgments in Arena Holdings Pty Ltd t/a Financial Mail & Another v South African Revenue Service & Others (hereafter, the Arena cases), both the Gauteng Division, Pretoria and Constitutional Court considered the conflict between the taxpayer’s constitutional right to privacy and the media’s constitutional rights of access to information and freedom of expression after the press requested access to the tax records of a former president. In doing so, the courts were faced with many diverse contentions. This article analyses selected issues arising from these arguments in both courts, namely taxpayer confidentiality and the exceptions thereto, access to information and the extension of the public interest override, and the nature of the application and powers of the court in these unique circumstances. The analysis goes beyond the scope of the ratio decidendi of the respective courts and provides obiter comments on practical questions raised in the affidavits and heads of argument filed before both courts. It finds that there is no precise precedent in South African tax law jurisprudence that is directly applicable to this exact scenario and considers the proposed extension of existing legislation.

New LNG production & Marine Bunkering Capability at Port Hedland Targets Pathway to IMO 2050 ‘zero-emissions’ Through Onboard Hydrogen Production

Pilbara Clean Fuels Pty Ltd is progressing a development concept for a new, mid-scale, low carbon footprint LNG plant to be located at Port Hedland in Western Australia, the world’s largest iron ore export port. The project will provide an Australian LNG fuel supply capability through a new facility for the conversion of pipeline natural gas to LNG, responding to market demand for cleaner marine bunker fuel for dry-bulk iron ore carriers operating ‘round-trip’ voyages between the Pilbara and Asia.

Vonnisbespreking: Die jongste “gly-en-val” uitspraak teen ’n winkeleienaar: ’n ontkenning van die Chartaprops-verweer?

Abstract The most recent “slip-and-trip” judgment against a shop owner: A denial of the Chartaprops defence? In 1991, in Langley Fox Building Partnership (Pty) Ltd v De Valence, the Supreme Court of Appeal held that the employer of an independent contractor is not liable for the delicts of the employees of the latter, unless the conduct of the employer or his or her employees had also conformed to the requirements for delictual liability. Notwithstanding, courts have since then not always followed that important judgment, particularly in claims arising from injuries sustained by shoppers who tripped and fell on slippery floors in shopping malls and supermarkets, where shop owners and/or managers had engaged independent cleaning firms to keep floors clean and safe (e.g. Probst v Pick ’n Pay Retailers (Pty) Ltd handed down by the full Johannesburg High Court in 1998). However, in 2009 the Supreme Court of Appeal held that it would be a valid defence for a shop or mall owner or manager to plead that an independent contractor had been appointed for floor cleaning, and that the latter would normally be delictually liable where a shopper had sustained injuries, effectively confirming Langley Fox. In the case under discussion, the plaintiff slipped and fell on a slippery patch in one aisle of the defendant’s supermarket. The court approached delictual liability by applying the res ipsa loquitur maxim on the authority of Probst. Consequently, an inference of negligence on the defendant’s part, following by applying the maxim, was established. The court ultimately decided that the defendant had failed to rebut such inference and also that no negligence had been established on the plaintiff’s part. Notwithstanding its reference to the “Chartaprops defence”, the court did not apply it properly and consequently held the defendant liable. At no point did the court enquire about the possible negligence of the independent contractor’s employees, although the facts overwhelmingly point towards such a probability. The reason for this omission is probably to be found because the court ordered the independent contractor to indemnify the defendant in terms of an indemnity clause in their cleaning service agreement. As a result, the effect of this judgment is that the pre-Chartaprops legal approach to “slip-and-trip” cases – in terms of which a shop owner could incur delictual liability for the civil wrongs of an independent contractor’s employees as if they were his employees – was reinstated. One can fully agree with the court that a reasonable person in the defendant’s position would have foreseen the type of damage that had occurred in casu, and would have taken reasonable steps to avoid such harm. However, the court’s finding that the steps taken by the defendant in appointing a cleaning service contractor had been ineffective, does not necessarily imply that those steps had been inadequate, considering the surrounding facts and circumstances. Keywords: foreseeability; independent contractor; legal duty; omission; negligence; shop floor; shop owner; shop manager; “slip and trip” injury; spillage; wrongfulness

838. The Role of Surgery in the Management of Invasive Fungal Rhinosinusitis Complicated by Orbitocranial Extension in the Era of Azole Antifungals

Abstract Background Orbitocranial fungal infection (OCFI) is a potentially lethal complication of fungal rhinosinusitis, historically requiring aggressive surgery despite its significant morbidity. Over the past two decades, early use of azole agents has been introduced to support amphotericin B formulations as first-line treatment followed by step down therapy with azoles, demonstrating promising outcomes. To date, there is no data regarding the contribution of surgery in the “azole era” to patients’ survival. We aimed to provide real-life data on azole treatment outcomes and the role of surgery in the current management of OCFI. Methods Data was collected retrospectively from a chart review of the four tertiary participating centers in Israel and Australia between January 1, 2009 and January 1 2020, as well as additional cases identified through a systematic literature review (Fig. 1). The study group included patients with OCFI treated with azole antifungals. Control cases were all treated with amphotericin B. The cranial and orbital involvement was staged based on imaging (Fig. 2). The extent of surgical resection was also classified to allow for inter-group comparison. Flowchart for identification, screening, eligibility, and inclusion for the systematic review according to the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) Staging of orbitocranial fungal infection used in the study and T1 contrast-enhanced magnetic resonance images illustrating each stage I. Orbital extent: orA - periorbit, lacrimal apparatus; orB - orbital fat; orC - oculomotor muscles; orD – optic nerve, eyeball. II. Cranial extent: crA - pterygopalatine fossa, nasopharynx; crB – temporal/infratemporal fossa; crC – cavernous sinus, dura; crD – brain, spinal cord. Results There were 125 patients in the azole anti-fungal (AAF) group and 153 in the control group (Table 1). Mucorales and Aspergillus were identified in 28% and 72% of AAF cases, respectively, and 67% and 33% of control cases, respectively (p< 0.001). Among patients with cranial extension, 22.6% were operated on in the AAF group and 18.4% in the control group (Table 2). However, meninges and brain resection were performed only in the controls (10.5%) and never in the azole antifungals group (p=0.045). Orbital involvement required surgery in 25.9% of AAF cases and 38.6% of controls (p=0.12). Despite a more aggressive cranial involvement, azole-treated patients’ 3-year mortality was significantly lower than controls (21% vs. 52%, HR 0.27, p< 0.001, Fig. 4). Comparison of the study groups according to the orbitocranial fungal infection extent a. cranial extent; b. orbital extent Kaplan Meier curve on the orbitocranial fungal infection specific survival during up to 3 years of follow-up *Categorical variables are presented in n (%); **Continuous variables are represented as mean (±SD); ªAcquired immunodeficiency syndrome; bHematologic disease leading to immune compromised status; *Including 6 patients with both Mucorales and Aspergillus Univariate analysis of the study groups' main characteristics Conclusion Despite less aggressive surgical intervention for cranial involvement, OCFI patients treated with azoles had a higher survival rate, suggesting we may improve morbidity with a more conservative surgical approach in conjunction with azole treatment. The same trend is emerging for orbital involvement. Surgery for rhino-orbital-cerebral mycosis patients. Disclosures Sharon C. Chen, PhD MBBS, F2G PTy LTd: Advisor/Consultant|F2G PTy LTd: Grant/Research Support

Judicial Review of the Enforcement of Sectional Title Rules: Administrative Action or Common-Law Review? Trustees for the time being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd

Judicial Review of the Enforcement of Sectional Title Rules: Administrative Action or Common-Law Review? Trustees for the time being of the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd

Capital Appreciation Ltd v First National Nominees (Pty) Ltd 2022 ZASCA 85 - The connection between share re-acquisitions, schemes of arrangement, and appraisal rights under the Companies Act 71 of 2008

This note analyses the judgment of the Supreme Court of Appeal in Capital Appreciation Ltd v First National Nominees (Pty) Ltd 2022 ZASCA 85 pertaining to the issue of whether the appraisal rights in section 164 of the Companies Act 71 of 2008 (the Companies Act) apply to a share re-acquisition of more than 5% of a company's issued shares in terms of section 48(8) of the Companies Ac. This judgement is significant in that it highlights the connection between, and the proper interpretation of the statutory regime created by, sections 48, 114, 115, and 164 of the Companies Act as well as the rationale underpinning this statutory regime. The note examines the main issues raised by the judgement as well as the impact that the amendments proposed by the Companies Amendment Bill [B27-2023] will have on this area of company law if this Bill is passed into law.

Bigen Africa Services v City of Cape Town: Audit Culture and State Self-Review in the Water and Sanitation Sector

In Bigen Africa Services (Pty) Ltd v City of Cape Town (WC) (unreported) case number 18681/2020 of 1 June 2021, the Western Cape High Court found that the inclusion of a local office as a pre-qualification criterion in tenders for professional water and sanitation services fell afoul of section 217(1) of the Constitution. This provision requires all organs of State to contract for goods or services in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. The court's reasoning on this point can be critiqued on the basis that it conflated distinct tests for determining the materiality of a deviation. However, the case raises broader concerns around the pre-eminence of audit over operational logic in the water and sanitation sector, and the use of state self-review to resolve the conflict.

Diagnostic Accuracy of a Fully Automated Method of Analysing MR Images for Evaluation of Liver Iron Concentration in a Population of Thalassemia Major Patients Following Curative Stem Cell Transplantation in Lebanon

Background Measurement of liver iron concentration (LIC) by MRI is recommended in several guidelines on the management of iron overload in patients with thalassemia. However, a key barrier to adoption of such methods in resource poor countries is access to expertise and training in the associated image data analysis [Padeniya, et al. (2020) Orphanet Journal of Rare Diseases, 15: 26]. A new software system, DLA R2-MRI, based on deep-learning trained neural networks, (FerriSmart®, Resonance Health Analysis Services Pty Ltd, Australia) has become available that automatically carries out both input data quality assurance and data analysis of suitable MR images, increasing the possibility of more widespread adoption of reliable MRI based LIC measurement. Aims The aim of this study was to assess the diagnostic accuracy of the index DLA R2-MRI method on MR images acquired as part of a previous study comparing phlebotomy with deferasirox for the treatment of iron overload in pediatric patients with thalassemia major following curative stem cell transplantation [Inati, et al. (2017) Pediatric Blood & Cancer, 64: 188]. LIC values from MR scans obtained with the spin-density-projection-assisted R2 MRI method (FerriScan®) were to be used as the reference values for the diagnostic accuracy study. Methods Archived MR data from the previous study were retrieved and analysed using the fully automated DLA R2-MRI software to generate LIC values. No human input was required in the analysis process and results were generated in seconds. The methods of Bland and Altman were used to determine the bias and 95% limits of agreement between the index and reference method. None of the image datasets in the study had been used to train the DLA R2-MRI neural networks. The sensitivities and specificities (with 95% CIs) of the index method for predicting LIC values by the reference method above the clinically relevant thresholds of 3, 5, 7, and 15 mg Fe/g dw were calculated using the Wilson-Brown method. Results Sixty nine (69) evaluations of LIC were carried out in the original study using the reference method. Sixty eight (68) datasets were retrieved from archives with one dataset missing. The 68 datasets were analysed by the DLA R2-MRI software. Six were rejected by the input quality control module owing to an absent date of birth in the DICOM images. The remaining 62 datasets yielded an LIC value. The 62 successful analyses represented evaluations on 32 patients with 8 patients being scanned 3 times, 14 patients being scanned twice, and 10 patients being scanned once. Patients (18 male, 14 female) ranged in age from 3.2 to 19.7 years at first scan (mean 13.1 SD 4.1 years). Twenty six (26) patients underwent iron reduction therapy during the study (14 phlebotomy and 12 chelation); 5 patients did not receive iron reduction therapy (4 not meeting eligibility criteria, and one was not treated due to parental refusal); one patient withdrew from the study after only 2 months of iron reduction therapy. A plot of the 62 LIC values by the index method plotted against the values from the reference method is shown in Figure 1. The bias between the index and reference results represented as the geometric mean ratio of the index LIC to the reference LIC was statistically insignificant being 1.00 [95% CI 0.96 - 1.05]. The sensitivities and specificities of the index method for predicting reference LIC values above clinically relevant thresholds are shown in Table 1. Conclusions The data show a negligible bias between the fully automated index DLA R2-MRI method and the manual expert-dependent reference SDPA R2-MRI method. The diagnostic accuracy is sufficient to guide iron reduction therapy in thalassemia major patients. The ability of the software both to provide input data quality assessment and LIC results within seconds without the need for data analyst training or outsourced analysis offers the opportunity for lower cost and more widespread availability of reliable LIC measurement by MRI for thalassemia major patients in Lebanon and beyond.

Safety of a feed additive consisting of Duddingtonia flagransNCIMB 30336 (BioWorma®) for all grazing animals (International Animal Health Products Pty Ltd).

Following a request from the European Commission, the Panel on Additives and Products or Substances used in Animal Feed (FEEDAP) was asked to deliver a scientific opinion on the safety of a feed additive consisting of Duddingtonia flagrans NCIMB 30336 (BioWorma®) for all grazing animals. The safety and efficacy of the additive have been already assessed previously, however the FEEDAP Panel could not conclude on the safety of the additive for the target species and the consumers due to the limitations in the dataset provided. For the current assessment, the applicant submitted a new tolerance trial in dairy cows and new toxicological studies. After the assessment of the new data submitted, the FEEDAP Panel concluded that the use of the feed additive in animal nutrition under the conditions of use proposed is of no concern for dairy cows. This conclusion can be extrapolated to all dairy bovines, ovines and caprines, but not to fattening and rearing animals of those species. Due to the lack of data, the FEEDAP Panel cannot conclude on the safety of the additive for other grazing species/categories. The FEEDAP Panel concluded that the additive is safe for the consumers.

Evaluation of TIB Molbiol LightMix® assays for detection of Mycoplasma genitalium and key resistance mutations for macrolides and fluoroquinolones.

The LightMix® Modular Mycoplasma Macrolide and LightMix® Modular parC Fluoroquinolone Resistance assays (TIB Molbiol) were evaluated using sequential M. genitalium positive (n=125) and negative (n=93) clinical samples. Results were compared to the results of an established commercial assay (ResistancePlus MG assay, SpeeDx Pty Ltd) or Sanger sequencing (for parC). Detection of M. genitalium by the TIB Molbiol assay had a high agreement with the reference assay, with a positive % agreement (PPA) of 97.6 (95% CI: 93.1 to 99.5) and negative % agreement (NPA) of 95.7 (95% CI: 89.5 to 98.8). From 105 positive samples, macrolide resistance detection had a PPA of 100% (95% CI:93.7-100), NPA of 81.3% (95% CI: 67.4-91.1). For detection of fluroquinolone resistance mutation G248T/S83I or "other mutation" in the quinolone resistance determinant region, from 95 samples there was 100% (95%CI: 86.3-100) sensitivity and 100% (95% CI: 94.5-100) specificity. The understanding of the basis for fluoroquinolone treatment failure is still developing; it is therefore important to use the output of parC-based resistance assays with caution to avoid the inappropriate use of antibiotic therapies, especially considering the limited number of alternative treatments.

THE APPLICATION OF DERIVATIVE MISCONDUCT IN THE WORKPLACE: A CRITICAL ANALYSIS OF National Union of Metalworkers of South Africa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Limited 2019 (5) SA 354 (CC)

In modern South African law, employees have several fundamental rights, the right to strike being one of those rights. This right is enshrined in the Constitution of the Republic of South Africa, 1996 (the Constitution) and also in the Labour Relations Act 66 of 1995 (the LRA); both statutes provide that every employee has the right to strike (s 64(1) of the LRA and s 23(2)(c) of the Constitution). However, for a strike to be protected as legal strike action, at least 48 hours’ notice of the commencement of the strike must be given, in writing, to the employer (s 64(1)(b) of the LRA). If employees misconduct themselves – for example, engage in acts of violence during a protected strike – the employer is entitled to dismiss those employees on the grounds of misconduct (Schedule 8, item 7 of the Code of Good Practice under the LRA). However, if the employer is unable to identify the responsible employees (the perpetrators), the question is whether the employer can request other employees to identify the perpetrators. If the answer to this is yes, the next question is whether the employer can dismiss these employees if the employees do not want to identify the “perpetrators”.To answer these questions, employers have relied on the principle of “derivative misconduct” to discipline employees during strike action where employees responsible for misconduct cannot be identified and other employees fail, when requested, to come forward and assist the employer to identify those responsible. Derivative misconduct is a principle that is neither defined nor appears in any labour legislation. It has been developed by the courts and used by employers as a concept to require an employee to come forward and give information about other employees who have misconducted themselves during protest action. Since derivative misconduct is not defined in labour legislation, a consideration of the judgments that have considered the scope and application of this principle on a particular set of facts demonstrates the difficulties of its application. Before the Constitutional Court judgment in NUMSA obo Khanyile Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd (2019 (5) SA 354 (CC)), several judgments attempting to develop or clarify the concept either found derivative misconduct did not exist on the particular facts or just expressed obiter views on the issue. This led to varying decisions on the application of derivative misconduct. The Constitutional Court has now finally sought to articulate and grapple with this concept.

THU596 Heteromerization Of The Angiotensin II Type 1 Receptor And The Bradykinin Type 2 Receptor

Abstract Disclosure: E.K. Johnstone: Grant Recipient; Self; Australian Research Council. K.D. Pfleger: Grant Recipient; Self; Australian Research Council. Stock Owner; Self; Dimerix Bioscience Pty Ltd. Background: Receptor heteromerization is the phenomenon whereby two different receptors form a functional complex that attains unique pharmacological properties. Consequently, receptor heteromers can be considered novel drug targets, with the potential to achieve greater therapeutic selectivity and specificity. In a landmark study, the first receptor heteromer to be associated with a disease was the heteromer that forms between the angiotensin II type 1 (AT1) receptor and the bradykinin type 2 (B2) receptor (1). The AT1-B2 heteromer reportedly led to increased angiotensin II signalling, which was implicated in the angiotensin II hypersensitivity involved in pre-eclampsia. However, the validity of this study was questioned by a collaboration of several groups who were unable to find any evidence for a physical or a function interaction between the two receptors (2). As a consequence of these conflicting studies, the existence of the AT1-B2 receptor heteromer has remained controversial. Aim: Investigation of evidence for heteromerization of the AT1 receptor and the B2 receptor. Methods: AT1 receptor and B2 receptor pharmacology and potential heteromerization was investigated in HEK293FT cells using various bioluminescence resonance energy transfer (BRET)-proximity based assays, as well as Dimerix’s Receptor-Heteromer Investigation Technology (Receptor-HIT) (3). Receptor-HIT enables the investigation of receptor heteromers through their specific ligand-induced proximity to interacting proteins. BRET assays, including in the Receptor-HIT configuration, allow real time, live cell monitoring of proximity between biomolecules of interest. Results: Using the Receptor-HIT assay, we confirmed the existence of the AT1-B2 receptor heteromer in HEK293FT cells. We found that the heteromer was able to recruit various GPCR interacting proteins, such as G proteins and arrestin in a bradykinin-dependent manner. Additionally, the heteromer also internalised and trafficked through the cell upon treatment with bradykinin. The close proximity of the two receptors was confirmed using a variation of the Receptor-HIT assay, which monitors receptor-ligand binding rather than protein-protein interactions. Discussion: Our study supports the existence of the AT1-B2 receptor heteromer and identifies various pharmacological properties of the complex. Further studies are required to relate these molecular properties to physiological consequences of heteromerization. (1)AbdAlla et al. Nat Med2001, 7 (9), 1003 1009.(2)Hansen et al. J Biol Chem2009;284(3):1831 1839.(3)Johnstone et al. Biochem Soc T. 2021;49:1555–65. Presentation: Thursday, June 15, 2023

Legal Parameters of the Employer's Duty to Consult

Significant workplace change requires consultation, and standard consultation obligations exist under legislation and statutory instruments. However, those provisions offer minimal guidance on how to approach consultation. The consultation cases tend to focus on compliance, adding little beyond saying consultation needs to be meaningful. Building on the foundation laid by the 2021 decision in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd, this article considers what the parameters of the obligation to consult might — or should — be. It shows that there is an over emphasis in the authorities on timing, as a compliance trigger, rather than the substance of the obligation, and major decisions continue to show the obligation is poorly understood. It argues that clear parameters are needed on how to implement the duty to consult, and that these parameters need to come from statute or clear authority of the courts. Without restricting the inherent flexibility that is needed for consultation to work, or impeding the employer’s prerogative to make decisions, it asserts that there is a need for a deeper legal underpinning, and more active obligations, to shift the concept away from the conflictual paradigm of consultation being ‘triggered’ towards a more collaborative and productive approach.

Bacillus Calmette-Guérin vaccination for protection against recurrent herpes labialis: a nested randomised controlled trial

Recurrences of herpes simplex virus (HSV) in the orofacial region (herpes labialis or cold sores) impact quality-of-life. We aimed to study whether the bacille Calmette-Guérin (BCG) vaccine can attenuate cold sore recurrences through off-target immunomodulatory effects. In this nested randomised controlled trial within the multicentre, phase 3 BRACE trial, 6828 healthcare workers were randomised in 36 sites in Australia, the Netherlands, Spain, the United Kingdom and Brazil, to receive BCG-Denmark or no BCG (1:1 ratio using a web-based procedure) and followed for 12 months with 3-monthly questionnaires. Exclusion criteria included contraindication to BCG vaccine or previous vaccination with BCG within the past year, any other live-attenuated vaccine within the last month, or any COVID-specific vaccine. The intervention group received one intradermal dose of 0.1mL of BCG-Denmark corresponding to 2-8 x 105 colony forming units of Mycobacterium bovis, Danish strain 1331. The primary outcome was the difference in restricted mean survival time (i.e., time to first cold-sore recurrence), in participants with frequent recurrent herpes labialis (≥4 recurrences/year), analysed by intention-to-treat. Secondary outcomes addressed additional questions, including analyses in other sub-populations. Adverse events were monitored closely during the first 3 months and were reported in all participants who received one dose of study drug according to intervention received. The BRACE trial is registered with ClinicalTrials.gov, NCT04327206. Between March 30, 2020 and February 18, 2021, 84 individuals with frequent recurrent cold sores were randomly assigned to BCG (n=38) or control (n=46). The average time to first cold-sore recurrence was 1.55 months longer in the BCG group (95% CI 0.27-2.82, p=0.02) than the control group (hazard ratio 0.54, 95% CI 0.32-0.91; intention-to-treat). The beneficial effect of BCG was greater in the as-treated population (difference 1.91 months, 95% CI 0.69-3.12, p=0.003; hazard ratio 0.45, 95% CI 0.26-0.76). In prespecified subgroup analyses, only sex modified the treatment effect (interaction p=0.007), with benefit restricted to males. Over 12 months, a greater proportion of participants in the BCG group compared with the control group reported a decrease in duration (61% vs 21%), severity (74% vs 21%), frequency (55% vs 21%), and impact on quality of life (42% vs 15%) of cold sore recurrences. In participants who had ever had a cold sore, there was also a decrease in self-reported burden of recurrences in the BCG group. In participants who had never had a cold sore, there was an increased risk of a first episode in the BCG group (risk difference 1.4%; 95% CI 0.3-2.6%, p=0.02). There were no safety concerns. BCG-Denmark vaccination had a beneficial effect on herpes labialis, particularly in males with frequent recurrences, but may increase the risk of a first cold sore. Bill & Melinda Gates Foundation, the Minderoo Foundation, Sarah and Lachlan Murdoch, the Royal Children's Hospital Foundation, Health Services Union NSW, the Peter Sowerby Foundation, SA Health, the Insurance Advisernet Foundation, the NAB Foundation, the Calvert-Jones Foundation, the Modara Pines Charitable Foundation, the UHG Foundation Pty Ltd, Epworth Healthcare, and individual donors.

Strategies for Knowledge Management Readiness in an Engineering Consulting organization in South Africa

This article investigates knowledge management readiness at an engineering consulting firm in South Africa known as Zutari (Pty) Ltd, or Zutari, and suggest a strategy to achieve readiness in engineering firms. Engineering consulting firms are knowledge-intensive firms that offer specialised services in the provision of independent expert knowledge in the fields of engineering, science and other related areas in the public and private sectors, infrastructure, and construction sectors Although knowledge management is widely acknowledged as a strategic enabler in engineering consulting firms, most initiatives fail, making a knowledge management readiness assessment essential before implementation. The target population was Zutari’s permanently employed technical professionals. Stratified and systematic sampling methods were applied to select a sample of 285 technical professionals. A questionnaire was used to gather quantitative data. The assessment model of Aydin and Tasci (2005) was used to assign readiness levels for the critical success factors under investigation. The findings reveal that the level of knowledge management awareness among Sutaria staff is quite high, even though knowledge management is practised informally. A knowledge management readiness strategy is suggested to get Sutaria to the expected level of readiness. Knowledge management is widely acknowledged as a strategic enabler by employees in Zutari, with information technology currently the only critical success factor at the expected level of readiness. A knowledge management strategy is suggested to assist Sutaria in achieving the expected level of readiness. Further research could test the effectiveness of the readiness strategy in different contexts using mixed methods research. This research will add new knowledge to the body of knowledge in the engineering consulting sector and help firms planning to implement knowledge management. Not many studies have been conducted to test the organisational readiness for knowledge management in engineering consulting firms. This article adds to the body of knowledge in this field.

Reflecting on the corporate opportunity rule in company law through a jurisprudential review of Modise v Tladi Holdings (Pty) Ltd 2020 4 All SA 670 (SCA)

Directors' fiduciary duties form part of foundational principles in corporate law. This concept has its foundations in the law of agency. Prior to the Companies Act 71 of 2008 (the Companies Act), fiduciary duties were governed under common law, however, the advent of the Companies Act resulted in the partial codification of fiduciary duties. One of the central fiduciary duties is the duty of directors to avoid conflict of interest. This duty restricts the directors of a company from having their personal interests impede those of the company. There are separate rules that flow from the directors' duty to avoid conflict of interests, including the corporate opportunity rule. The corporate opportunity rule dictates that directors must not use their position to unfairly benefit from the contracts and/or information that rightfully belongs to the company they are managing. The objectives of the corporate opportunity rule were clarified in Modise v Tladi Holdings (Pty) Ltd (the Modise case). In partially confirming the judgment of the court a quo the Supreme Court of Appeal held that the ambit of breaching the corporate opportunity rule includes the illegal use of the property and confidential information of the company by a director for personal gain. This article agrees with the reasoning of both the High Court (court a quo or trial court) and the Supreme Court of Appeal in the Modise case on the issue of prescription although the article raises concerns about the decision of the Supreme Court of Appeal on a similar issue. Further, the article concurs with the reasoning of both the court a quo and the Supreme Court of Appeal in concluding that the applicants breached their fiduciary duty when they appropriated a corporate opportunity that belonged to the company. One of the major lessons that could be learnt from the Modise case is that directors, especially those who serve on multiple boards, should exercise extreme caution with potential conflicts of interest.