This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.
LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - OCTOBER 2021
The B-BBEE Commission published Explanatory Notice 02 of 2021 regarding the completion of form B-BBEE 1 and the compliance matrix for submission of a compliance report in terms of section 13G (1) and (2) of the Broad-Based Black Economic Empowerment Act 53 of 2003 (B-BBEE Act), as amended, in respect of the Johannesburg Stock Exchange (JSE) and state-owned entities (SOEs).
- In Minerals Council of South Africa v Minister of Mineral Resources and Energy and Others (20341/19)  ZACC 33 (21 September 2021), the Gauteng High Court, in a unanimous judgement on 21 September 2021, ruled that the Broad-Based Socio-economic Empowerment Charter for the Mining and Metals Industry, 2018 (Mining Charter III or the Charter) does not constitute binding subordinate legislation but is an instrument of policy. Consequently, section 100(2) of the Minerals and Petroleum Resources Development Act 2002 (No. 28 of 2002) (MPRDA) does not empower the Minister of Mineral Resources to make law. Various clauses of the 2018 Charter were set aside, including the clauses relating to B-BBEE ownership empowerment obligations on existing mining right holders when they wish to renew or transfer their rights.
- In Afriforum NPC v Minister of Tourism and Others; Solidarity Trade Union v Minister of Small Business Development and Others (499/2020 and 498/2020)  ZASCA 121 (22 September 2021), the Court order held that “…the Minister of Tourism was not legally obliged by section 10(1)(e) of the Broad-Based Black Economic Empowerment Act 53 of 2003 to make eligibility criteria for assistance from the Tourism Relief Fund subject to the Tourism Sector Code made in terms of that Act and the direction was consequently unlawful”.
Employment Equity Act, 1998 (Act No. 55 of 1998):
The Department of Employment and Labour, in a media statement dated 7 September 2021, confirmed that the Employment Equity (EE) reporting season for both manual and online reporting had opened on 01 September 2021. The manual EE reporting period closes on 01 October 2021 and the online period closes in January 2022.
Constitution of the Employment Equity Committee:
SERR Synergy has identified the need to formulate a constitution for EE committees in order to regulate their composition and activities, which will be provided to SERR Synergy’s SDF/EE clients. A properly constituted EE committee will become even more imperative once the new amendments expected in March 2022 become law.
Promotion of Access to Information Act (Act No. 2 of 2000) (PAIA):
The Information Regulator published the following documentation during September 2021:
- Strategic Plan for 2021/22 and Annual Performance Plan for 2021/22.
- Forms 1 (Request for a Copy of the Guide and Request for a Copy of the Guide from an Information Officer); Form 2 (Request for access to record); Form 4 (Internal appeal form) and Form 13 (Request for assessment); and Form 5 (Complaint Form) relating to the Promotion of Access to Information Act, 2000.
- PAIA Manual Template for a Public and Private Body.
The Information Regulator published the following media statements during September 2021:
- The Information Regulator announced on 13 September 2021 that its systems had been affected by a ransomware attack on the Department of Justice & Constitutional Development and assured the stakeholders that the IT teams were diligently working to restore services as soon as possible and that no indication of a data compromise had been detected on the systems.
- The Information Regulator, on 24 September 2021, notified potentially affected persons who are ‘data subjects’ in terms of section 22 of the Protection of Personal Information Act 4 of 2013 (POPIA), about the malware that attacked the Information Technology (IT) systems of the Department of Justice and Constitutional Development.
National Consumer Commission:
- In a media statement dated 30 August 2021, the National Consumer Commission announced that it was pleased with the outcome and decision by the National Consumer Tribunal (NCT) confirming that Cape Town Boats (Pty) Ltd had contravened section 27 (1)(a)(ii) and Regulation 9(2)(j) of the Consumer Protection Act 68 of 2008 (CPA). The National Consumer Commission reiterated the importance of Intermediaries disclosing the prescribed information to any person whom they solicit or agree to represent with respect to the sale of any property or service.
SERR Synergy’s Information Compliance (POPI and PAIA) Department can assist businesses or entities with a full range of Information Compliance service offerings, including the compilation of Data and Information Protection Reports, drafting of the required Data Privacy policies, updating agreements to deal with data considerations, advice on internal data-handling requirements, or an understanding of the specific data-privacy roles that businesses or entities are required to fulfil.
- The Department of Employment and Labour, in Government Gazette No. 45131 dated 10 September 2021, published a list of Bargaining Councils that have been accredited by the CCMA in terms of the provisions of the Labour Relations Act (Act 66 of 1995) for conciliation and/or arbitration and/or inquiry by arbitrator, with the terms of accreditation stipulated in this gazette for the period 01 August 2021 to 31 August 2024.
- The Minister of Employment and Labour, Thulas Nxesi, in Government Gazette No. 45158 dated 14 September 2021, declared in terms of section 32(2) of the Labour Relations Act 66 of 1995 (as amended) that the collective agreement of the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) was extended to non-parties with effect from 27 September 2021 to 28 February 2022.
- The Director of Collective Bargaining, Stephen Rathai, in Government Gazette No. 45242 dated 29 September 2021, extended the period of operation of the Main Collective Agreement of the Bargaining Council for the Furniture Manufacturing Industry of the South Western Districts dated 30 October 2020 until as amended from time to time.
Cape Peninsula University of Technology v Mkhabela (CA12/2020)  ZALAC 30 (27 September 2021)
- The Respondent (hereinafter referred to as “Mkhabela”) was employed as from 1 August 2015 for a fixed period of five years as Executive Director: Office of the Vice Chancellor of the Cape Peninsula University of Technology. Due to the unrest experienced at the campus in 2016 and the subsequent abusive events that took place at a meeting, she submitted her resignation with immediate effect due to the personal attacks which allegedly had a detrimental impact on her safety and psychological and emotional wellbeing. The Labour Court held that Mkhabela suffered unfair discrimination in terms of section 5 and section 6 of the Employment Equity Act 55 of 1998 (the EEA). Mkhabela was awarded an amount equivalent to 13 months of her salary.
- The Labour Court’s finding of harassment was in essence based on the abusive attacks on the Respondent by students at a meeting and the contents of Professor Louie Fourie’s email. On appeal, the Labour Appeal Court (LAC) held that the Labour Court had erred as neither of these pieces of evidence would justify a finding of discrimination on one of the three grounds pleaded by Mkhabela, namely belief, conscience and political opinion. As indicated on the strength of the test set in the well-known constitutional case of Harksen v Lane, there would be no basis on which to extend the category of comparable grounds to any opinion, belief or aspect of conscience outside of that which was set out earlier in the judgement. The finding of unfair discrimination and the order of the Labour Court were set aside by the LAC.
CCMA and Bargaining Council caselaw:
Nhiwatiwa / Altius Trading 13 (Pty) Ltd t/a Kloof Street Convenience (2021) 30 MIBC 8.24.1
The applicant (hereinafter referred to as “Nhiwatiwa”) was employed as a cashier from 30 January 2020 with the employer. The employer’s business is an Engen service station with a convenience store. Nhiwatiwa was dismissed for selling "unapproved" masks to customers for her own financial gain and additionally failed to adhere to company procedures by placing the monies received from the sale of the "unapproved" masks under the company till. In conclusion, the employer submitted that due to Nhiwatiwa’s conduct and her persistence in selling masks after being instructed not to, the trust relationship had been broken. The Commissioner at the CCMA held that Nhiwatiwa’s actions could potentially affect the business’s license to operate as it was in breach of the franchise agreement, and consequently ruled the dismissal to be fair.
Mahuri / Galvaglow (2021) 30 CCMA 8.37.20
- The applicant (hereinafter referred to as “Mahuri”) was employed with the employer for approximately nine years. He was dismissed for bringing the respondent's name into disrepute by posting a comment on the Economic Freedom Fighters' Facebook page stating "CIC Julius Malema together with the leadership are paying the CEO . . . a special visit. The company has not paid the employees TERS . . ."
- Mahuri confirmed that he had made the comment as he was frustrated that the company did not pay the provident fund or his overtime. He had addressed the matter with the employer where he was told that the gate was open and he could leave. He stated that his aim in making the comment was to put pressure on the company to pay his money and that the EFF could come and fix the problem by frightening the employer. The Commissioner noted that the comment on the EEF’s Facebook page relates directly to TERS and UIF and that his argument regarding the Provident Fund monies was not probable because his comment was made in replying to a post regarding TERS and UIF. Mahuri argued that he was unaware of a rule that he had to protect the company’s name. The Commissioner held that certain rules are so well-known that everyone is deemed to know them and that this rule does not have to be codified and signed for.
- Mahuri also submitted that he is protected by his right to freedom of speech in terms of section 16(1) of the Constitution. The Commissioner held that Mahuri does have the right to make a comment about the company; however, he also has an obligation to ensure that the comment is accurate and truthful. In this matter, Mahuri received a confirmation message from the Department of Labour indicating that the employer was UIF compliant; therefore, his comment was not truthful. In conclusion, Mahuri’s conduct had broken the trust relationship between the employer and employee and therefore dismissal was substantially fair.
The SERR Synergy Labour Department can guide and assist businesses with the processes and procedures to ensure compliance with labour legislation and to mitigate risks relating to employment issues to which businesses are exposed.
OHS Competent Person Guidelines:
The Department of Employment and Labour, in September 2021, published the OHS Competent Person Guidelines. The aim of the guidelines is to provide supplementary information to employers and employees to assist in identifying and appointing competent occupational health and safety persons within a company.
Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993):
- The Department of Employment and Labour, in Government Gazette No. 45126 dated 10 September 2021, issued a notice in terms of section 6A(b) of the Compensation for Occupational Injuries and Diseases Act, 1993 as amended, to inform all beneficiaries of the Compensation Fund of the banking requirements for Occupational Injuries and Diseases-related claims.
Disaster Management Act, 2002 (Act No. 57 of 2002):
- The Minister of Transport, Fikile Mbalula, in Government Gazette No. 45073 dated 31 August 2021, announced the amendment of the Directions issued in terms of Regulation 4 (7b) of the Regulations made under section 27 (2) of the Disaster Management Act, 2002 (Act No. 57 of 2002), stipulating that Direction 6 was amended by the substitution of sub-direction (1) with a sub-direction providing that “(1) All learner’s licences, driving licence cards, temporary driving licences and professional driving permits that expire during the period that commenced from 26 March 2020 up to and including 31 August 2021 are deemed to be valid and their validity periods are extended for a further grace period ending on 31 March 2022”.
- The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, in Government Gazette No. 45155 dated 12 September 2021, extended the national state of disaster from 15 September 2021 to 15 October 2021.
- The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, in Government Gazette No. 45253 dated 30 September 2021, announced that Alert Level 1 would apply nationally from 01 October 2021.
The SERR Synergy Occupational Health and Safety Department can assist businesses to comply with the relevant legislation. The above documentation can be requested from the SERR Synergy OHS Department.
Covid-19 Employment Practical Guidelines for Employers:
In order to implement a mandatory Covid-19 vaccine policy in the workplace, an employer must follow the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces as published by the Minister of Employment and Labour in Government Gazette No. 44700 dated 11 June 2021.
SERR Synergy has developed a Covid-19 Mandatory Vaccine Workplace Policy to provide assistance to employers in addressing aspects such as the application of, and parties excluded from, the directive; obligations of the employer and employee; employees suffering from side effects of the Covid-19 vaccine; confidentiality aspects; and disciplinary measures to be taken should an employee refuse to be vaccinated in instances where a mandatory Covid-19 vaccine policy is legitimately implemented.
The SERR Synergy Labour Department can assist businesses to comply with the relevant legislation. The above policy and directive can be requested from the SERR Synergy Labour Department.
SERR Synergy Research Division
Lané Boshoff – firstname.lastname@example.org