Chris Charter, Director, Competition, Cliffe Dekker Hofmeyr In its recent decision to impose an administrative penalty against two firms for their role in a wire mesh cartel, the Tribunal has set out a new approach to penalty calculations. Borrowing heavily from the policy in Europe, the Tribunal's approach involves six steps: Step 1: Determination of the affected turnover in the relevant year of assessment (affected turnover is based on sales of products or services that can be said to have been affected by the contravention). Step 2: Calculation of the 'base amount', being that proportion of the relevant turnover relied on (based on the EU precedent, this may be as much as 30% of the affected turnover, depending on the nature of the contravention). Step 3: Where the contravention exceeds one year, multiplying the amount obtained in step 2 by the duration of the contravention. Step 4: Rounding off the figure obtained in step 3, if it exceeds the cap provided for by s59(2) (this cap is statutorily set at 10% of a firm's entire South African turnover). Step 5: Considering factors that might mitigate or aggravate the amount reached in step 4, by way of a discount or premium expressed as a percentage of that amount that is either subtracted from or added to it (this is not typically applied in the EU, but allows the Tribunal to consider factors that are specific to a respondent, such as it being an unwilling participant, or in the interests of proportionality). Step 6: Rounding off this amount if it exceeds the cap provided for in s59(2). If it does, it must be adjusted downwards so that it does not exceed the cap (this is likely only if there are aggravating circumstances that push the level of fine up). The new paradigm provides some clarity, but does open the door for significant argument as to the effect of the contravention as well as the circumstances applicable to each firm involved. Of considerable concern to firms that have significant turnover . . .
The Constitutional Court today confirmed that organisers of public gatherings can lawfully be held liable for damages caused by demonstrators. Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr business law firm explains that the Court dismissed an appeal by the South African Transport and Allied Workers Union (SATAWU) against an earlier finding by the Supreme Court of Appeal that similarly confirmed that they may be held liable for damage caused by protestors. “Numerous small business owners and also vehicle owners initiated proceedings to hold SATAWU liable for damage caused by demonstrators following a march arranged by SATAWU to protest various employment issues pertinent to the security industry. Flower and handbag stalls along the way of the march were looted or damaged with various private vehicles ending on the receiving end of angry protestors’ frustrations,” he says. “SATAWU’s liability for these damages arise from section 11(1) of the Regulation of Gatherings Act (RAGA). This section creates liability for every participant in the gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener, for riot damage caused. The RAGA creates a statutory defence (section 11(2)) against such liability where a party can show that he or it took all reasonable steps within his or its power to prevent the act or omission in question,” Botes explains. The questions before the Constitutional Court centred around (1) the interpretation of Section 11(2) – does it create a defence – and (2) if so, whether the defence limits the right to freedom of assembly in Section 17 of the Constitution and whether this limitation is reasonable. “The Court confirmed in a majority judgment that the defence against liability provided in section 11(2) of RAGA is viable. It held further that the limitation of the right to freedom of assembly is reasonable. The Court stated that the . . .
This week the Property Poser experts address a reader’s concern about preventing pedestrians from crossing her vacant seafront plot. The reader explains that she bought the land a decade ago and initially intended to build on it but has since decided to sell. The problem she faces is that the local residents, mostly fishermen, use a pathway across her land to access the beach, even though there is a public road a short distance away. The reader has checked the title deed and no servitude exists. Her land is unfenced and she has no intention of erecting one as she believes it would look unsightly and that it would soon be damaged in order to gain renewed access to the pathway. The reader’s concern is that a right, claimed by the local authority and residents, may be created by means of prescription if she continues to allow the public to use the path. This, in turn, might affect the planned sale. According to Willem Luttig from Raubenheimers Inc in George, Section Six of the Prescription Act provides that “a person shall acquire a servitude by presumption if he has openly, and as though he was entitled to, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise for an uninterrupted period of 30 years”. It therefore certainly appears that, over time, such a right may be constituted, says Luttig. “The change in ownership of the land will not interrupt the running of prescription, as long as the public continues using the property openly, and this may realistically present a problem for future owners.” Luttig says the Act does, however, make provision for certain instances in which prescription is interrupted and the passing of time needed to complete the acquisition of the right stops. Despite the reader’s aversion to a fence, a cost-effective option would be to enforce the right of ownership by preventing access in a practical manner, says Pieter van Rensburg, principal of Chas Everitt in . . .