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Auto & General Insurance has been announced as the overall winner in the short-term insurance category in the 2022/2023 Ask Afrika Orange Index® awards. Auto & General Wins The 2022/2023 Short-Term Insurance Ask Afrika Orange Index Award Background The Ask Afrika Orange Index® has been at the forefront of service benchmarking and is the broadest, independent, and most widely referenced service excellence benchmark in South Africa. The benchmark has been tracking customer experience, and the changing trends and expectations since 2001. “We are thrilled to receive this prestigious accolade and would like to take this opportunity to thank our customers and Broker partners for their ongoing trust, support and much-appreciated vote of confidence,” says Ricardo Coetzee, Head of Auto & General Insurance. Auto & General’s commitment to service excellence is backed by decades of experience as well as a Service Promise, which offers its customers the right to exceptional service. If, for whatever reason, Auto & General are unable to keep a promise they have made, they’ll pay a self-imposed penalty fee. “Customer-centricity, excellence and service-reliability is at the heart of what we do, and this recognition proves that we are on the right track. Our promise to you is that in an uncertain world, we’ll continue to provide certainty,” says Coetzee. News

In the recently reported judgment of BNS Nominees (RF) Proprietary Limited and Another v Arrowhead Properties Limited and Others 2023 (1) SA 478 (GJ), the Johannesburg High Court provided clarity regarding certain provisions of section 164 of the Companies Act No. 71 of 2008 (“Companies Act”) relating to the appraisal rights of shareholders and the determination of “fair value”. Fair Value Frenzy Background Appraisal rights are rights granted to a shareholder who has voted against the implementation of certain proposed corporate actions. Such shareholders are typically regarded as “dissenting shareholders”. Section 164 entitles a dissenting shareholder to sell its shares to the company for fair value. If the dissenting shareholder is of the view that the offer from the company does not constitute fair value, then it can bring an application for the court to determine that value or to appoint one or more appraisers to assist it in that task. To read the entire article, please click on the link. News

In the workplace there is a temptation to label alleged misconduct, either because we consider doing so makes the misconduct appear more serious, or we consider it necessary to do so as part of a formal disciplinary process. Labelling misconduct – a source of clarity or confusion Background Contrary to that instinct, the Labour Appeal Court recently confirmed the principle that employers do not have to and should avoid seeking to label or compartmentalise the misconduct they are charging an employee with, such as assault or theft. Rather, it is best to simply describe the conduct which is being complained of and explain why it constitutes misconduct. In the case of Engen Petroleum (Pty) Ltd v CEPPWAWU and others an employee was charged with assault. The employee pleaded not guilty to the charge of assault. The Labour Appeal Court found that the plea of not guilty was based on the employee’s understanding from a layman’s perspective of what assault entailed. In this case the Court concluded that it was clear that in aggressively pulling and grabbing another employee by their shirt the employee was guilty of assault in the legal sense of the term ‘assault’. However, in pleading not guilty to the charge of assault, the employee did not appreciate that the legal definition of assault extends beyond physical injurious conduct and includes the mere threat of physical harm. To read the entire article, please click on the link. News

A pactum de non petendo (“pactum”) is an agreement between parties whereby one party agrees not to institute legal proceedings against the other party, either temporarily or permanently. A pactum usually suspends the enforcement of a commercial contract for a specific period or until the occurrence of some contingency. Enforcement of an agreement not to sue Background In the recent decision in Coral Lagoon Investments 194 (Pty) Ltd and another v Capitec Bank Holdings Limited[1] (“Coral Lagoon”) the Supreme Court of Appeal (“SCA”) grappled with the interpretation of a consent agreement entered into between the parties to the dispute, and the question as to whether a pactum in perpetuity was contrary to public policy. In Coral Lagoon, Ash Brook Investments 15 (Pty) Ltd and Coral Lagoon Investments 194 (Pty) Ltd (“Coral”) (together, the “Appellants”) and Capitec Bank Holdings Limited (“Capitec”) concluded a subscription and shareholders’ agreement (the “Subscription Agreement”) in terms of which Capitec allotted and issued shares to one of the Appellants, Coral, who subscribed for shares in Capitec. In terms of the Subscription Agreement, the Appellants were subject to certain selling restrictions which later became the source of contention between the parties. It was the parties’ understanding that those restrictions contained in the Subscription Agreement meant that Capitec’s consent was required for the sale of Coral’s share in Capitec. To read the entire article, please click on the link. News

NOVEMBER 1, 2023In a recent ground-breaking ruling,[1] the High Court made an order declaring provisions of the Basic Conditions of Employment Act 75 of 1995 (“BCEA”) relating to maternity leave, parental leave, adoption leave and commissioning parental leave, as well as the corresponding provisions in the Unemployment Insurance Fund Act 63 of 2007 (“UIF Act”), as unconstitutional. The order serves as a progressive step to ensuring that different categories of parents are entitled to the same parental leave benefits and that a gender equal approach to parental leave is adopted. A progressive step towards parental leave: High Court declares various provisions of legislation regulating parental leave as unconstitutional The judgment indeed has far-reaching implications when it pertains to the entitlement of both maternity and paternity leave allocation under the BCEA and as read with the UIF Act. It accordingly broadens the scope of maternity leave, traditionally allocated for pregnant mothers, to other categories of parents, regardless of their gender, who otherwise require nurturing and providing care to their newborn. Background Mr and Mrs Van Wyk, as the First and Second Applicants (“Van Wyks”), brought an application to declare sections 25, 25A, 25B and 25C of the BCEA, as well as the corresponding provisions in the UIF Act unconstitutional and invalid to the extent that it unfairly discriminated against categories of parents namely; birth mother and father, adoptive parents and parents of a child born through surrogacy, in relation to the duration of leave entitlements. The couple had decided that Mr Van Wyk would be the primary caregiver during the early stages of their child’s development so that Mrs Van Wyk could return to trade in their business. To read the entire article, please click here News

A Cautionary Tale on Data Protection: a reminder on ensuring specific adherence to the lawful processing of personal information as an essential to compliance under POPIA On 1 September 2023, a major South African pharmaceutical company (“the Company”) was issued with an Enforcement Notice by the Information Regulator of South Africa. You’ve Taken the First Step Background In a novel finding by the Information Regulator, the Company was issued with an Enforcement Notice following a finding of a breach of various sections of the Protection of Personal Information Act of 2023 (“POPIA”). As a terse anecdote, the Company’s e-Statement Service database was managed by its third-party service provider (“Third Party Service Provider”). Around April and May 2022, the Third-Party Service Provider suffered a brute-force attack. The Company became aware of the security compromise and/or data breach through an SMS sent to some employees, it was at this point that the Company notified the Information Regulator of the occurrence. It became apparent to the Information Regulator that the Company had failed to notify its data subjects in accordance with the provisions of section 22 of POPIA. Outcome by the Information Regulator Upon conducting an investigation into the security compromise, the Information Regulator found that the Company compromised the protection of personal information of its data subjects and the conditions for lawful processing of personal information. As such, the Company was required to: To read the entire article, please click here. News