newslet.gif

CONSUMER PROTECTION ACT & COMPANIES ACT DELAYED

In accordance with reports in Buanews, the implementation of the new Consumer Protection Act and Companies Act has been delayed to 1 April 2011.

The delay will enable the Department of Trade and Industry ('the dti') to finalise all processes required to effectively administer these two pieces of legislation, as well as give businesses and the public enough time to prepare themselves for compliance with the new laws, as they will have a significant impact on business operations.

The postponement, however, only relates to the general implementation of the various provisions of the two Acts. It does not extend to the establishment of the two institutions required to implement or administer the legislation - namely the Companies and Intellectual Property Commission and the National Consumer Commission.

According to the dti, the aforementioned institutions will come into existence and commence with administrative operations as stipulated in the Acts in the third quarter of this financial year. The public and stakeholders will thus be able to approach them for assistance and guidance as soon as their establishment is announced in due course.

Certain provisions of the Consumer Protection Act - which became effective on 24 April 2010 - will now be implemented by the National Consumer Commission, which will entail the current staff of the Office of Consumer Protection.

The provisions include those contained in Chapter 1 and Chapter 5 as well as section 120 of the Consumer Protection Act.

Source: Buanews

CASH THRESHOLD REPORTING REQUIRED FOR ATTORNEYS

In accordance with Government Gazette 33596 published on 1 October 2010, all attorneys, casinos and motor vehicle dealers are obliged to, from 4 October 2010, report cash transactions of R25 000 or more to the Financial Intelligence Centre (‘FIC').

From 1 December 2010, the cash transaction reporting ('CTR') obligations will apply also to dealers in Kruger Rands, as well as financial and other institutions such as banks, insurers, dealers in foreign exchange, financial advisors and estate agents.

The FIC have introduced a range of electronic reporting mechanisms, including an internet-based reporting system. These mechanisms will enable all participating industries and institutions to submit reports electronically using login credentials acquired from the FIC.

NO REASONS FOR REFUSAL OF LEAVE TO APPEAL- CONSTITUTIONAL

Greenfields Drilling CC & Others v Registrar of the Supreme Court of Appeal & Others CCT 53/10 [2010] ZACC 15

In the above matter, the applicants wished to appeal against a decision of the Supreme Court of Appeal ('SCA') refusing them leave to appeal to the Constitutional Court, because the SCA gave no reasons for refusing leave to appeal. The applicants therefore applied to the Constitutional Court for direct access for purpose of determining the constitutionality of the practice of the SCA not to give reasons for the refusal of applications for leave to appeal.

The Constitutional Court held that it was not inconsistent with the Constitution for the SCA not to furnish reasons for its decisions refusing leave to appeal to it. The position might however be different if a constitutional matter is involved and the SCA is not the court of final instance. The applicants, did not however claim that any constitutional issue would arise in the contemplated application for leave to appeal to the Constitutional Court and in those circumstances the application for direct access must be adjudicated on the basis that the SCA was the court of final instance in the application for leave to appeal that served before it. The Constitutional Court therefore refused the application for direct acess.

CONFERENCES AND SEMINARS

LEAD: EVICTION AND RENTAL CLAIMS SEMINAR

The purpose of the seminar, presented by mr Christo Smith, is to provide delegates with updates regarding the latest case law and developments in the law of eviction and rental claims.

Dates: Port Elizabeth 20 October 2010; East London 22 October 2010; Cape Town 25 October 2010; Middelburg (Mpumalanga) 19 November 2010; Bloemfontein 22 November 2010; Pretoria 25 November 2010; Johannesburg 26 November 2010; Durban 29 November 2010

Costs: Different cost structures applicable

REMOVAL OF RACIALLY RESTRICTIVE PROVISIONS IN TRUST

Curators Ad Litem to Certain Beneficiaries of Emma Smith Educational Fund v The University of KwaZulu-Natal (510/09) [2010] ZASCA 136

The appeal in the above matter centered on the provisions of a will creating a charitable trust, the Emma Smith Educational Fund (‘the Fund'). The Fund was administered by the University of Kwazulu-Natal (‘the University'). Its benefits were, in the original terms of the will, reserved solely for white South African women who need financial support for a tertiary education. Applicants for a bursary must have lived in ‘Durban' for at least three years to qualify.

The question before the Court was whether this bequest to be administered by the University could be allowed to stand in its racially exclusive form. The court of first instance granted an order deleting the racially restrictive provisions of the bequest and substituting ‘the Ethekwini Municipality' for ‘Durban' and the curatores ad litem of the potential beneficiaries lodged the current appeal.

The Court found, amongst others, that the Bill of Rights applies to all law, including the law relating to charitable trusts: '. . .the objects of a trust will have to conform with the disavowal of unfair discrimination under the 1996 Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act'.

It found that section 13 (a) and (c) of the Trust Property Control Act 57 of 1988 (which empowers a court to vary trust provisions) apply to the present issue, as the racially restrictive nature of the Fund prevents the realisation of the testator's intentions while it is, in addition, in conflict with the public interest.

The court below thus correctly decided to remove the racially restrictive conditions of the will and the appeal was accordingly dismissed. The Court however set aside the order of the court a quo substituting ‘the Ethekwini Municipality' for ‘Durban'.

ROAD ACCIDENT FUND - 3 YEAR TIME LIMIT CONSTITUTIONAL

Road Accident Fund & Another v Mdeyide (CCT/10/10) [2010] ZACC 18

In the above matter, a certain mr Mdeyide, who is blind, illiterate and innumerate, was involved in a motor vehicle collision. His claim for compensation in terms of the Road Accident Fund Act ('RAF Act') was lodged with the Road Accident Fund ('RAF'), three years and three days after the date of the collision.

In the Eastern Cape High Court the RAF pleaded that Mr Mdeyide's claim had prescribed since the RAF Act stipulates that the right to claim compensation prescribes three years after the date upon which the cause of action arose. The High Court declared that provision of the RAF Act unconstitutional due to the fact that it imposed a complete bar to claims outside of the prescription period, no matter how unusual or exceptional the claimant's particular circumstances. The matter was then referred to the Constitutional Court for confirmation of the order of constitutional invalidity.

In the majority judgment by Van der Westhuizen J the Court held that the provisions of the Prescription Act could not apply to the RAF Act as the two Acts were created for different purposes; the former to apply generally and the latter to apply to claims against the RAF based on road accidents. The identity of the debtor, the RAF, is fundamentally different to that of the identity of debtors in cases covered by the Prescription Act.

Van der Westhuizen J further held that the challenged provision limits the right of access to courts, but that the limitation is reasonable and justifiable under section 36 of the Constitution. He also held that the prescription of claims is well known in law, for good reasons. He held, further, that the fixed time period in the RAF Act is related to a legitimate government purpose, to ensure the continued existence and maximum efficiency of a compensation fund for those injured in road accidents and that relaxing the time period could seriously affect the efficiency, functioning and financial viability of the Fund. Moreover, the time period of three years is much longer than the periods previously found to be unconstitutional by the Constitutional Court and generous enough to provide for flexibility. The High Court's order was, thus, not confirmed and the appeal was upheld.

In a dissenting judgment by Froneman J it was held that the challenged provision of the RAF Act is unconstitutional as the prescription period is too inflexible to be justified and, thus, potentially affects the most socio-economically disadvantaged individuals in society.