Pty Ltd Research Articles

The Implications of Derivative Misconduct on the Right to Strike: An Analysis of National Union of Metalworkers of South Africa (NUMSA) obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd

The Implications of Derivative Misconduct on the Right to Strike: An Analysis of <i>National Union of Metalworkers of South Africa (NUMSA) obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd</i>

Vonnisbespreking: Die tragiese gevolge van onbevoegde polisie-optrede – die hof maak (te) korte mette met flou verskonings

Vonnisbespreking: Die tragiese gevolge van onbevoegde polisie-optrede – die hof maak (te) korte mette met flou verskonings

The Use of Self-Assembling Peptides (PuraStat™) in Functional Endoscopic Sinus Surgery for Haemostasis and Reducing Adhesion Formation. A Case Series of 94 Patients.

Functional endoscopic sinus surgery (FESS) is a treatment option for patients with chronic rhinosinusitis. Bleeding and adhesions are common complications postoperatively. To assess the effectiveness of PuraStat™ (3-D Matrix Medical Technology Pty Ltd, Melbourne, Australia) for use in FESS to achieve haemostasis and reduce adhesion formation. A retrospective chart review over four years was performed on 94 patients undergoing FESS by a single surgeon, using PuraStat™ in absence of nasal packing. Twenty-eight patients underwent complete FESS and 66 cases limited FESS most often combined with nasal surgery. Six patients had bleeding postoperatively, of which only four required additional treatment (4.25%). Twenty-three patients (24.47%) required debridement during the follow up, simply performed by suction for 13 or by scissors for 10. No patient required revision surgery for adhesion. PuraStat™ used for the first time in context of FESS seems to be effective in achieving haemostasis, reducing adhesion formation, and avoiding nasal packing in most patients.

The Right of Access to Land VIS-À-VIS the Right to Mine: The Discussion on the Lessons Drawn from the Case of Maledu and Others v Itireleng Bakgatla Mineral Resources (Pty) Ltd and Another 2019 (1) BCLR 53 (CC)

Land remains a contentious issue in South African history to date. It provides people with hope and various opportunities. This paper discusses the right of access to land and the right to mine. The paper discusses at length the requirements set at law and considered significant for compliance to attain these rights. Four dominant issues emerge from the discussion namely land, mining rights, consultation and consent as well as deprivation as pillars adjoined to critique the fundamental legal requirements needed to access land and to mine it. Mining companies compete for access to the country’s mineral lands and petroleum resources to exploit them relentlessly. Whilst South Africa has been installed as the conduit of the nation’s mineral and petroleum resources, the need to enforce compliance with the requirements set a national law is critical to avoid illegal mining and unlawful deprivation of land for mining purposes. This is because most of the land in South Africa is communal or belong to private owners, concentrated with the mineral wealth. Legislation such as the Interim Protection of Informal Land Rights Act 31 of 1996(IPILRA) and the Minerals and Petroleum Resources Development Act 28 of 2002(MPRDA), as amended, are triggered for this discussion.&#x0D; &#x0D; Received: 22 August 2022 / Accepted: 30 October 2022 / Published: 5 November 2022

Towards a new stakeholder-inclusive conceptual framework to strengthen internal corporate image

It is widely reported in the literature that employees’ image of the organisation has a direct influenceon external stakeholders’ image of the organisation. This research attempted to address theneed for an approach that facilitates employee engagement coupled with a leadership approachthat allows collaboration, inclusion and co-operation within the organisation, to strengthenthe internal corporate image. A synthesis of the literature from a unique stakeholder-inclusiveperspective, depicted in the King III Report on corporate governance, was conducted to identifythe theoretical principles for a preliminary conceptual framework explored through a case studyapproach. Parsec Technologies Pty Ltd was purposively selected as case study, because it wasthe 2012 and 2013 winner in the manufacturing sector of the Deloitte Best Company to Work For(BCTWF) survey, and served as a best practice organisation in the context of this research. Datatriangulation by means of one-on-one interviews, focus groups and an open-ended survey wasconducted with employees to determine the pragmatic relevance of the proposed framework. Thefindings culminated in a new generic stakeholder-inclusive conceptual framework to strengthenthe internal corporate image by means of the AA1000 Stakeholder Engagement Standardelements and responsible leadership. Although a single case study is limited, this frameworkcontributed to the body of knowledge on corporate image to provide organisations with guidelinesfor strengthening their internal corporate image.

PERFECTION CLAUSES, SUMMARY EXECUTION (PARATE EXECUTIE) CLAUSES, FORFEITURE CLAUSES (PACTA COMMISSORIA) AND CONDITIONAL SALES IN PLEDGE AGREEMENTS AND NOTARIAL BONDS  THE POSITION CLARIFIED

A number of recent cases in various divisions of the High Court and in the Supreme Court of Appeal have concerned clauses, in notarial bonds and in agreements for cession of rights in securitatem debiti, which permit the creditor, upon default of the debtor, without recourse to a court, either to take possession of, to retain, to acquire or to sell the property provided as security for the performance of the debt. The decisions reflect a measure of controversy surrounding the validity of such clauses in light of the rule against self-help and section 34 of the Constitution (Act 108 of 1996) which provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. Other considerations which have been taken into account have been freedom of contract, the principle of pacta sunt servanda and whether such terms are contra bonos mores. The validity of such clauses has significance, particularly, for grantors of credit, who frequently rely upon them to provide security for their debtors‟ obligations, and, consequently, for commerce generally.In the most recent case, Bock v Dubororo Investments (Pty) Ltd (2004 2 SA 242 (SCA)), notably, the Supreme Court of Appeal overruled the decision in Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd (2001 1 SA 251 (E)), in which it was held that summary execution was unconstitutional, and, consequently, we have greater clarity in relation to this issue. It is useful, I submit, to analyse the decision in Bock v Dubororo Investments (Pty) Ltd (supra) in the context of the applicable general legal principles and relevant precedent, to gain perspective on the current legal position.

WHO SHOULD BEAR THE ONUS IN RESTRAINT OF TRADE DISPUTES? Canoa KwaZulu-Natal (Pty) Ltd t/a Canon Office Automation v Booth 2004 1 BCLR 39 (N)

Canoa Kwazulu-Natal (Pty) Ltd t/a Canon Office Automation v Booth (2004 1 BCLR 39 (N), hereafter “the Canon case”) was reported only in 2004 although the judgment had already been handed down on 27 March 2000. The matter before the court concerned the issue of restraint of trade provisions in the light of a constitutionally protected right to freedom of trade as provided for in section 22 of the Constitution of the Republic of South Africa (Act 108 of 1996, hereafter “the Constitution”). Of particular interest is the decision of the court as to who bears the burden of proof in a restraint of trade dispute. It is this aspect that forms the focus of this note.

WINNING A CIVIL CASE WITHOUT GIVING ANY KIND OF EVIDENCE WHATSOEVER? Jordaan v Bloemfontein Transitional Local Authority [2004] 1 All SA 496 (SCA), 2004 3 SA 371 (SCA)

The standard of proof in a civil case is the well-known preponderance (balance) of probabilities. This requires of the party on whom the onus lies, in order to be successful, to satisfy the court that he is entitled to succeed on his claim or defence, as the case may be (Pillay v Krishna 1946 AD 946 952-953). The onus of establishing a case in accordance with this standard is on the party who makes the assertion since if a person claims something from another in a court of law, he has to satisfy the court that he is entitled to it (Pillay v Krishna supra 951; and Van Wyk v Lewis 1924 AD 438 444). According to Voet (22.3.10) the position is: “He who asserts, proves, and nothe who denies, since a denial of a fact cannot naturally be proved, provided that it is a fact that is denied and that the denial is absolute.” The person who makes the claim, and accordingly bears the onus of proof, is invariably the plaintiff. However, there are situations in which the defendant bears the onus. This ordinarily happens when the defendant is not content with a mere denial of the claim against him but sets up a special defence. In respect of the special defence the defendant becomes the claimant. For the specialdefence to succeed the defendant must satisfy the court that he is entitled to succeed on it (Pillay v Krishna supra 952; Corpus Juris (D.44.1.1); and Voet 22.3.9).The word “onus”, in this context, refers to the duty which is cast on the particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed on his claim or defence, as the case may be. This is the meaning of the word in its true and original (primary) sense. In this sense the onus never shifts from the party upon which it originally rested (South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 3 SA 534 (A) 548A-B). In a secondary sense the word means the duty cast upon a litigant to adduce evidence in order to combat a prima facie case made by the opponent. In this sense the onus refers to the burden of adducing evidence in rebuttal. This may shift or be transferred in the course of the case, depending upon the measure of proof furnished by the one party or the other (South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd supra 548).

ANOTHER VIEW ON HIV/AIDS TESTING AT THE WORKPLACE PFG Building Glass (Pty) Ltd v Chemical Engineering Pulp Paper Wood &amp; Allied Workers Union (2003) 24 ILJ 974 (LC)

In the third of a trilogy of cases (the first two being Joy Mining Machinery (A division of Harnischfeger (SA) (Pty) (Ltd) v NUMSA (2002) 23 ILJ 391 (LC) and Irvin and Johnson Ltd v Trawler and Line Fishing Union (2003) 24 ILJ 565 (LC)) interpreting the boundaries of section 7(2) of the Employment Equity Act 55 of 1998 (hereinafter referred to as “EEA”), the Labour Court in PFG Building Glass (Pty) Ltd v Chemical Engineering Pulp Paper Wood &amp; Allied Workers Union ((2003) 24 ILJ 974 (LC)) (hereinafter referred to as “PFG Building Glass (Pty) Ltd v CEPPWAWU) has yet again approached the issue of HIV/Aids testing at the workplace from a different perspective.In this case the applicant sought a declarator pronouncing that authorisation for the anonymous and voluntary testing of employees for HIV/Aids at the workplace was unnecessary, as such testing does not fall within the scope of section 7(2) of the EEA. Section 7(2) of the EEA expressly prohibits the testing of an employee to establish HIV/Aids status, unless such testing is “determined to be justifiable by the labour court …” A similar order was sought and granted in the earlier decision of Rogers AJ in Irvin and Johnson Ltd v Trawler and Line Fishing Union (supra) on different grounds. Unlike Rogers AJ in Irvin and Johnson Ltd v Trawler and Line Fishing Union (supra), Pillay J in PFG Building Glass (Pty) Ltd v CEPPWAWU (supra) chose to interpret this provision on the grounds identified by section 3 of the EEA, being “compliance with the Constitution, so as to give effect to its purpose, taking into account any relevant code of good practice … and compliance with international law obligations …”

POTHIER, THE STRAYING MULE AND THE UNRULY BARMAN Costa Da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy 2003 4 SA 34 (SCA)

On the evening of 31 October 1997, the respondent and his girlfriend visited the Umdloti Bush Tavern. A person by the name of Goldie was stationed behind the bar serving the customers. It appeared to the respondent that Goldie served everyone but him and his girlfriend. When another barman approached him, the respondent remarked that Goldie could take a few lessons regarding service from the second barman. Goldie heard this remark, became agitated and glared at the respondent. He further beckoned the respondent to come closer. The respondent reacted by saying words to the effect that he “did not come for people like that” (Costa Da Oura Restaurant (Pty) Ltd T/A Umdloti Bush Tavern v Reddy 2003 4 SA 34 (SCA) par 30). This further agitated Goldie and he occasionally stared at the respondent and appeared to be aggressive. When the respondent and his girlfriend were about to leave, the respondent generously tipped the barman who had served them. Goldie saw this and quickly exited the bar. When the respondent reached the corridor in the immediate vicinity of the bar, Goldie assaulted him, causing injuries which were reasonably serious. Immediatelyafter the incident the manager of the Umdloti Bush Tavern summarily dismissed Goldie “because he had broken the rules that regulated how he should perform his basic duties” (par 41). The simple question to be decided was whether the appellant wasvicariously liable under the circumstances. The crux of the respondent’s contentions was that the incident was sufficiently connected with the scope of employment of the appellant’s employee to establish vicarious liability, while the appellant contended that Goldie had acted for personal vengeance, on his own, against instructions and after he had abandoned his duties as a barman. The Durban and Coast Local Division in Reddy v Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern (supra) found the appellant vicariously liable for damages resulting from the incident. On appeal the decision was reversed. The purpose of this discussion is to analyse the finding of the Supreme Court of Appeal and to ascertain whether the employer, in the circumstances of this case, should have been held liable. In the process of doing so, the background to the ruling will be explained and the legal policy implications of the decision assessed.

The role of training and development on organisational performance in the footwear industry in South Africa

Training and development may not be a panacea for all the challenges that organisations face in the 21st century, but it has important implications on employee performance and overall organisational performance. Organisations that want to improve performance and productivity can do so through leveraging their most valuable resource, its people. The significance of this study is to inform curriculum developers about the skills shortage in the footwear industry in South Africa. The core problem this study seeks to address is the skills shortage in the footwear industry in South Africa. Furthermore, currently in KwaZulu-Natal, universities, technical and vocational education do not provide training on footwear. The mixed research method was employed. The purposive sampling was used to select the participants from Dick Whittington Shoes (Pty) Ltd Questionnaires, focus group interviews and document reviews were used to gather data. The findings of the study show that the human resource manager is facing a serious challenge from employees, which is a higher rate of absenteeism this hamper the performance of the organisation. The study found that the majority of employees are above the age of 55 years. In addition, they retire the organisation will re-employ them on the contract bases precisely because they find it hard to find incumbent with skills. The study recommended the need for a proper framework on continuous training and development of employees in the footwear industry in South Africa. Secondly, the public-private partnership with universities to bridge the skills gap and improve the gross domestic product in South Africa if implemented this could bring a resolution to the problems and challenges posed.

JURISDICTIONAL ISSUES OF INTERNATIONAL INVESTMENT DISPUTE RESOLUTION I N ICSID ARBITRATION

This article examines the jurisdictional of ICSID Arbitration and the dispute resolution mechanism of Churchill Mining plc and Planet Mining pty ltd against Indonesia at ICSID. This research is in the form of normative legal research conducted by collecting legal materials. Legal materials are collected using the literature study method by collecting legal materials and information in primary, secondary, and tertiary legal materials. According to Article 25 of ICSID Convention, dispute arising directly from an Investment, absolute requirement of jurisdiction is the existence of a legal dispute. The general secretariat serves as a screening and checks whether the request for arbitration is outside the center's jurisdiction because it is not related to investment. ICSID should no longer need to carry its competency test for too long because both parties have made a contract in determining the choice of forum at ICSID.

Workload is associated with the occurrence of non-contact injuries in professional male soccer players: A pilot study.

Injuries in professional soccer are a significant concern for teams, and they are caused amongst others by high training load. This cohort study describes the relationship between workload parameters and the occurrence of non-contact injuries, during weeks with high and low workload in professional soccer players throughout the season. Twenty-one professional soccer players aged 28.3 ± 3.9 yrs. who competed in the Iranian Persian Gulf Pro League participated in this 48-week study. The external load was monitored using global positioning system (GPS, GPSPORTS Systems Pty Ltd) and the type of injury was documented daily by the team's medical staff. Odds ratio (OR) and relative risk (RR) were calculated for non-contact injuries for high- and low-load weeks according to acute (AW), chronic (CW), acute to chronic workload ratio (ACWR), and AW variation (Δ-Acute) values. By using Poisson distribution, the interval between previous and new injuries were estimated. Overall, 12 non-contact injuries occurred during high load and 9 during low load weeks. Based on the variables ACWR and Δ-AW, there was a significantly increased risk of sustaining non-contact injuries (p < 0.05) during high-load weeks for ACWR (OR: 4.67), and Δ-AW (OR: 4.07). Finally, the expected time between injuries was significantly shorter in high load weeks for ACWR [1.25 vs. 3.33, rate ratio time (RRT)] and Δ-AW (1.33 vs. 3.45, RRT) respectively, compared to low load weeks. The risk of sustaining injuries was significantly larger during high workload weeks for ACWR, and Δ-AW compared with low workload weeks. The observed high OR in high load weeks indicate that there is a significant relationship between workload and occurrence of non-contact injuries. The predicted time to new injuries is shorter in high load weeks compared to low load weeks. Therefore, the frequency of injuries is higher during high load weeks for ACWR and Δ-AW. ACWR and Δ-AW appear to be good indicators for estimating the injury risk, and the time interval between injuries.

Federal Court Disagrees with SingTel Australia that Interest Paid to British Virgin Islands Company Was Arm’s Length

In Singapore Telecom Australia Investments Pty Ltd v. Commissioner of Taxation, Moshinsky J has agreed with the Commissioner that SingTel Australia paid excessive interest on an AUD 5.2 billion loan from its British Virgin Islands holding company. Moshinsky J therefore upheld amended assessments disallowing interest deductions of AUD 894 million. However, the simplicity of the result belies the complexity of the Australian transfer pricing provisions and his Honour’s lengthy and careful reasoning. The authors examine the decision in detail and conclude that, despite the Commissioner's success, the transfer pricing landscape in Australia remains uncertain and unpredictable – especially given the taxpayer’s recent (2021) win in Commissioner of Taxation v. Glencore Investment Pty Ltd. All transfer pricing matters clearly need to be considered separately on a case-by-case basis.

MINERAL LAW AND THE DOCTRINE OF RIGHTS: A MICROSCOPE OF MAGNIFICATION?

The doctrine of rights has become part of private law jurisprudence. In this article the application of the doctrine in two decisions dealing with surface support in mineral law is examined. It is argued that the decision of Kriegler J in Elektrisiteitsvoorsieningskommissie v Fourie, namely, that the right to surface support is an entitlement, is more correct than Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd in which it was decided that the right to surface support is a competence. It is submitted that depending on the legal location of the entitlement in the relationship between owner and miner of land one may simply refer to either an owner’s entitlement to surface support or a miner’s entitlement to undertake opencast-cast mining.

CONTRACTING WITH THE BODY CORPORATE OF A SECTIONAL TITLE SCHEME

The judgment in Torgos (Pty) Ltd v Body Corporate of Anchors Aweigh (2006 3 SA 369 (W)) (“Torgos”) is of great importance to trustees and bodies corporate of sectional title schemes, and to third parties entering into contracts with the trustees. It is respectfully submitted that the ultimate decision arrived at by the court is correct, but that trustees and third parties may well be confused by the court’s reasoning in coming to that decision. The effect of the judgment is that when the Sectional Titles Act (“the Act”) and rules empower the trustees to bind the body corporate of a sectional title scheme provided certain “preliminaries” are gone through, a third party dealing with the trustees is not obliged to investigate whether those preliminaries have actually been observed but may assume that they have in fact been complied with. Accordingly, the third party may hold the body corporate to a contract entered into by the trustees, even though the “preliminaries” were not met. However, a third party who enters into a contract with the trustees to purchase the body corporate’s right to extend the sectional title scheme cannot assume that the written consents required for the sale in terms of section 25 of the Act have in fact been obtained. Absent the written consents, the sale agreement entered into by the trustees is void. This begs the question: why cannot third parties also assume that the “preliminaries” referred to in section 25 have been observed? Putting it differently, what can third parties assume and what not?

DEMOCRACY, MINORITY UNIONS AND THE RIGHT TO STRIKE: A CRITICAL ANALYSIS Numsa v Bader Bop (Pty) Ltd 2003 2 BCLR (CC)

In NUMSA v Bader Bop (Pty) Ltd (2003 2 BCLR 182 (CC)) minority unions were given the right to strike for the purpose of acquiring organisational rights. The Constitutional Courts approach in coming to its conclusion is questionable. Instead of declaring sections of the Labour Relations Act 66 of 1995 (hereinafter “the LRA”) unconstitutional it sought to bastardize the language of the Act and maintain its validity. A literal interpretation of the Act clearly prohibited strikes. The Constitutional Court should have declared these sections invalid and referred them to the legislature to correct. This judgment also fails to apply International Labour Organisation (ILO) standards correctly and is a major step backwards in protecting our new constitutional democracy. The purpose of this case note is to show weakness within the approach adopted by the Constitutional Court and suggest the approach that the court should have adopted.

Comparison of GPS derived variables based on home versus away matches in the Asian professional soccer team

Professional soccer with high training loads is defined with weekly competition. The purpose of this study was to compare external training load data of GPS derived variables that preceded a home versus away match. Twenty-two weeks of a national league meet schedule were analyzed, which included 11 home and 11 away matches. Twelve professional soccer players (age, 28.6 ± 2.7 years; height, 182.1 ± 8.6 cm; BMI, 22.6 ± 0.7 kg/m2) participated in this study. All matches were monitored using GPSPORTS systems Pty Ltd. The following variables were selected: total duration of the matches and training sessions, high-speed running distance (18–23 km h−1), sprint distance (&gt;23 km h−1), maximal speed, body load, metabolic power, accelerations Zone1 (&lt;2 m s−2) (AccZ1), accelerations Zone2 (2 –4 m s−2) (AccZ2), accelerations Zone3 (&gt;4 m s−2) (AccZ3), decelerations Zone1 (&lt;−2 m s−2) (DecZ1), decelerations Zone2 (−2 to −4 m s−2) (DecZ2) and decelerations Zone3 (&gt;−4 m s−2) (DecZ3). The results indicated that metabolic power showed higher values at home than away matches [ p = 0.047, ES = 0.53, (−0.28, 1.34)]. Furthermore, there was a higher value in accumulated external training load that preceded away matches for high-speed running and lower value [ p &lt; 0.001, ES = −0.95 (−1.79, −0.10)] for DecZ1 than home matches. In conclusion, external load variables had a higher value in home matches. However, the results showed that high-speed running was higher in away matches, which could be the discretion of the coaches to prepare players for different conditions on the opponent’s field.

Quality of life in children with glaucoma: a qualitative interview study in Australia

ObjectiveChildhood glaucoma is a chronic vision-threatening condition that may significantly impact an individual’s psychosocial well-being. There is a paucity of literature investigating the quality of life (QoL) in children with...

John Nils Almgren (1930–2021)

John Nils Almgren AM (20 June 1930 to 24 December 2021) was renowned in the Australian telecommunications industry for his success, together with his wife Yvonne, in building a major Australian manufacturing company, J. N. Almgren Pty Ltd, starting from scratch in 1960. JNA began as a custom-designer of small electromechanical subsystems for the PMG and State electricity utilities, but later developed successful electronic products for public and private data networks for large corporations. The company was floated on the ASX in 1992 as JNA Telecommunications Ltd. It operated internationally until bought by the US company Lucent Technologies in 1998. John and Yvonne became significant philanthropists, often declining any publicity for their generous donations.