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BusinessDay www.businessday.co.za Thursday 17 November 2022
NATIONAL
Cosatu says bill on schools is too broad
• Proposed penalties for school disruptions criticised Tamar Kahn Labour federation Cosatu, which counts SA’s biggest teachers’ union among its members, has urged parliament to scrap provisions in the contentious Basic Education Laws Amendment Bill that criminalise disruption of schools. Parliament’s basic education committee has been hearing oral submissions on the bill, which contains wide-ranging reforms that include a ban on any disruption to schooling. The bill makes it an offence to “interrupt, disturb or hinder any school activity”, with penalties that include a fine or up to 12 months in prison. This includes teachers and pupils. “This definition of school disruptions is too broad, unconstitutional and will effectively criminalise teachers and education workers for exercising their constitutional and legal rights to picket, protest and strike,” Cosatu said in its submission. “Such a ban won’t pass constitutional muster and will be challenged in the Constitutional Court if not removed by parliament from the bill.” The SA Democratic Teachers Union (Sadtu), which represents 26,400 of SA’s 400,000 teachers, said people who disrupted schooling should be penalised,
Matthew Parks but the bill went too far. The bill should specifically exclude educators or union members who had embarked on a protected strike, it said. “There are sufficient existing laws pertaining to criminal conduct and violent protests, and (this) should not be the legislative tool where such activities are dealt with,” it said in its presentation to the committee. Cosatu’s parliamentary coordinator Matthew Parks said the organisation was opposed to the bill’s provisions allowing schools to sell alcohol on their premises as part of their fundraising activities, as it sent the wrong message to teenagers
and had the potential to fuel violence and trauma. Many school governing bodies supported alcohol sales on the premises, as they raised funds by renting out school properties for functions such as weddings, he said. “Whilst there is a place for the responsible consumption of liquor in society, school is not that place,” he said. “Young people are particularly susceptible to alcohol and binge drinking. If we are serious about tackling alcohol abuse, then parliament must remove the provisions allowing alcohol sales at schools,” he said. Parks said the bill’s provisions extending compulsory schooling from grade 1 to grade R should be taken a step further, and extended from grade 9 to grade 12. A large number of learners dropped out of school after grade 9, without the skills required by the labour market, and are condemned to lowpaying jobs with few prospects, he said. The growing pool of workers with limited education was hampering economic growth, he said. Learners should be required to stay in school until grade 12, or pursue courses at technical and vocational education training colleges. kahnt@businesslive.co.za
SOE EMPLOYEES
Gungubele or Kodwa must report to Scopa on SSA vetting, say parliament’s lawyers Linda Ensor Parliamentary Writer Minister in the presidency in charge of the State Security Agency (SSA) Mondli Gungubele, or deputy Zizi Kodwa, must abide by the request of parliament’s standing committee on public accounts (Scopa) to report on SSA vetting of employees of state-owned enterprises (SOEs), or be summonsed to do so if they refuse. This is the legal advice given to Scopa by parliament’s chief legal adviser, Zuraya Adhikarie. Scopa decided on Wednesday on the basis of the legal opinion that it will write to Gungubele to ask him and the SSA to appear on November 30, failing which he and the SSA will be issued with a subpoena. Scopa wanted Gungubele or Kodwa to report on the vetting of Eskom employees, particularly those involved in supply chain management after it emerged that few had been vetted. But Gungubele refused, saying that he was by law only obliged to report to parliament’s joint standing committee on intelligence (JSCI), which holds closed meetings. But Adhikarie countered this, saying that to argue that such update is part of “accountability to the JSCI” as the minister is doing, and therefore that only the JSCI may hold the SSA to account, is a narrow interpretation of the Intelligence Services Oversight Act 40 of 1994, that could lead to a situation that is inconsistent with the constitution and the requirement to maintain oversight of all organs of state. “The Intelligence Services
Taking a stand: Minister in the presidency Mondli Gungubele previously refused to report to Scopa on the vetting of Eskom employees and insisted he was obliged to report only to the JSCI. /Freddy Mavunda/ Oversight Act provides that certain matters must go to the JSCI, but does not preclude other committees from looking at such reports, for example the audited financial statements of the SSA. “Should the minister refuse to report to Scopa, Scopa may initiate the process to summon the minister to provide the said information. We advise accordingly.” Adhikarie said Scopa was empowered by law to request the update on the vetting of employees of SOEs. This was
not a matter in the exclusive domain of the JSCI. Scopa also had the legal right to consider the financial statements and related matters of the SSA to fulfil its oversight mandate. She said if it was reasonable and justifiable, the public and the media could be excluded from the Scopa meeting where the vetting information was provided. “Closure would only be necessary in as far as the SSA can demonstrate that the disclosure of information could reasonably be expected to prejudice the defence, security or interna-
tional relations of the republic.” Scopa chair Mkhuleko Hlengwa has noted that there is precedent for state security ministers to appear before Scopa. At a Scopa meeting in October, MPs were informed only five of 21 senior Eskom executives had been granted security clearance. The vetting status of the other executives was still “in progress”, including that of the group CEO and the acting GM for procurement. It was at this meeting that Scopa suggested a meeting with the SSA to follow
up on the status and progress of the vetting process. Hlengwa wrote to Gungubele in October, requesting a report by the presidency on “the vetting of all officials that were vetted and not vetted, and their positions, particularly in Eskom. The exercise should include the executive”. The request was based on a 2014 cabinet directive that all organs of state be screened, especially in supply-chain management departments. An internal report by the committee’s secretariat noted that it was “imperative that adequate processes concerning the screening and security vetting of employees be put in place. Most officials occupying positions involving huge responsibilities within the organs of the state have not been vetted. There are no regulations that attach sanctions to individuals and heads of institutions who fail to cooperate or avail themselves for the vetting process”. A cabinet directive to have all senior management and officials in supply-chain management units in government departments and entities vetted had not been fully implemented, the report said. Scopa has previously raised concerns about the slow progress in screening public officials in government departments and state-owned entities (SOEs). “There was a lack of enforcement of the cabinet approval of the national vetting strategy. Some senior officials of the SOEs simply refused to be vetted and there were no consequences taken against them,” the report noted. ensorl@businesslive.co.za
INSIGHTS: ALCHEMY LAW
Merger: springboard for strategic growth presents •anThis opportunity to enhance firms’ collective expertise, writes Lynette Dicey
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he increasingly volatile social, economic and political environment gave rise to the need for increased speed and dexterity to address several complex legal issues, many of which existed in the arena of commercial law. For legal advisory firms Alchemy Law Africa and Roodt Incorporated, the solution to serving evolving client needs was found in strategic collaboration — a well-timed catalyst for a merger, built on a shared appreciation for the “art of law”. The recent establishment of Alchemy Law was the culmination of a merger between Alchemy Law Africa and Roodt Incorporated — two commercial legal advisory firms that have built reputations on their long-standing commitment to excellence and a bespoke service offering in areas such as banking and finance, BBBEE, capital markets, corporate law, competition, dispute resolution, mergers and acquisitions, mining and resources, and restructuring and insolvency. According to Johan Roodt, chairman of Alchemy Law, the firms’ joint experience in providing professional services in the areas of corporate law served as a springboard for strategic growth in the “new normal”.
Johan Roodt … bespoke services.
Morné van der Merwe … legacy.
Wildu du Plessis … diversity.
“The current market has seen a dramatic upsurge in the appetite for bespoke legal services that can help clients mitigate the uncertainties of the local and global climate. For us, the merger was an intuitive
solutions to produce expert, business-like solutions. “We refer to this as ‘the art of law’. Going forward, we will continue to lean on the strengths that lie in the diversity of our individual and collective experiences and energies.” The newly formed Alchemy Law specialises in complex cross-border, African-focused legal matters, which calls on its team members to draw on their local and international expertise. As lead counsel, the firm will operate across several jurisdictions and time zones, empowering clients with the advantage of a world-class level of service. The firm utilises technology and resourcing to support its nimble approach to corporate and commercial law “We differentiate ourselves by providing transparency, certainty and flexibility in today’s competitive marketplace,” says partner Morné van der Merwe. “We are well positioned to
deal efficiently with the issues that arise as we explore new avenues and territories within the legal arena. We consider ourselves as being a disruptive legal advisory firm with the ability to play a key role in shaping the sector of the future and putting our clients at the forefront of those pivotal changes,” he says. “We look forward to the prospects that this merger presents and remain optimistic that it will provide us with the impetus to build a lasting legacy by developing the next generation of business-minded, solution-orientated lawyers.”
THE NEWLY FORMED ALCHEMY LAW SPECIALISES IN COMPLEX CROSS-BORDER, AFRICAN-FOCUSED LEGAL MATTERS progression and an opportunity to enhance our collective expertise in serving these emerging needs,” says Roodt. The operational philosophy of Alchemy Law stems from the concept of alchemy. Partner Wildu du Plessis explains that the concept represents the ability to combine advisory
THE FIRM UTILISES TECHNOLOGY AND RESOURCING TO SUPPORT ITS NIMBLE APPROACH TO CORPORATE AND COMMERCIAL LAW
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BusinessDay www.businessday.co.za Thursday 17 November 2022
Slow progress in implementing ANC’s 2017 conference resolutions
• Former leaders accuse the governing party of inaction Luyolo Mkentane Political Writer
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s the ANC’s national elective conference approaches, the party’s leadership will be under pressure to explain the apparent failure to implement resolutions from its last big meeting in 2017. A review of the governing party’s policy decisions suggests that other than the step-aside rule, which aims to deal with corruption in its ranks, there has been little to no progress in implementing resolutions adopted at the national congress held at Nasrec in Johannesburg in December 2017. These include expanding the mandate of the SA Reserve Bank to deal with employment creation and economic growth; the establishment of a state bank; fighting crime and corruption; expropriation of land without compensation; illicit financial flows; and closing the wage gap between workers and the executive. Though ANC president Cyril Ramaphosa has reaffirmed his commitment to implementing the resolutions, his detractors have accused him of lacking the political will to do so for fear of upsetting the delicate power balance in the party, because he cannot fully assert his authority as he won the ANC presidency
by a small margin. Others have accused him of obsessing over the step-aside rule to target his political opponents. Ramaphosa himself has said he will step down if charged over the Phala Phala scandal. Cosatu first deputy president Mike Shingange told Business Day: “The ANC has so far failed to implement these policies because of a lack of political commitment and also due to the balance of forces domestically and internationally. The state bank has been researched by Treasury for four years with no action. “The Reserve Bank governor has made it very clear that he is opposed to both the expansion of the Reserve Bank mandate and the idea of a state bank. “The Postbank and African Bank are already under state control, but they are not oriented towards pushing a developmental agenda.” Shingange said Cosatu was seeing progress on corruption with some high-profile arrests. “But we need more to be done. Austerity budgets are being used to undermine institutions like [the National Prosecuting Authority and Special Investigating Unit]. Police numbers have moved from 200,000 to 172,000 in the last 20 years and are dwindling because of budget cuts. “So, there is nothing radical about the ANC and yet its
manifesto called for a radical posture to move away from the business-as-usual approach.” The upcoming conference, at which Ramaphosa is expected to seek a second term as party leader, is crucial. Whoever is elected will be responsible for leading the party’s campaign for the national elections in 2024, when the party’s support is expected to dip below 50%. This has sparked fears among some that the ANC government could cling to power with destructive, populist macroeconomic policies and by raising the prospect of coalition politics. The party suffered its worst electoral performance in the 2021 municipal elections when its support fell below 50% for the first time since 1994, resulting in the ANC losing the Gauteng metros of Johannesburg, Ekurhuleni and Tshwane to DA-led multiparty coalitions. At its national congress in 2017, which elected Ramaphosa as party leader, the ANC resolved to accelerate economic growth and create jobs; strengthen state-owned enterprises that have been hollowed out by years of corruption linked to state capture; pursue land expropriation without compensation; speed up service delivery; and root out corruption in the public and
ANC SCORECARD
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private sectors. However, some ANC leaders have accused the party of failing to implement some of these decisions. In July, former president Thabo Mbeki publicly berated Ramaphosa for failing to keep his promises to tackle unemployment, inequality and poverty, which Mbeki said had increased the risk of social unrest in SA. Other former heads of state, Kgalema Motlanthe and Jacob Zuma, have also criticised Ramaphosa’s leadership.
STEP-ASIDE RULE
The step-aside rule was adopted in 2017 and it calls for those facing criminal charges to step aside from their positions or be suspended. Those affected by the rule include corruptionaccused suspended ANC secretary-general Ace Magashule and eThekwini chair Zandile Gumede. Ramaphosa, who was elected ANC president on an anti-corruption ticket, could himself be a victim of the stepaside rule if he is charged for
any offence over the Phala Phala farm allegations. These were brought forward by former spy boss Arthur Fraser — Ramaphosa has denied them — and are the subject of investigation by law enforcement agencies and security organs.
STATE BANK
The 2017 conference resolved to establish a state bank. Business Day reported last week that the government has shot down calls by the DA for a feasibility study to be conducted before establishing Postbank as a fully fledged bank. Through the Postbank Limited Amendment Bill, the government could finally realise plans to set up a state-owned bank. The party called for the Bank’s mandate to be expanded to take account of other objectives such as employment and economic growth. However, there has been little movement in implementing this resolution. Reserve Bank governor Lesetja Kganyago, delivering a public lecture at the Wits School of Governance about two weeks ago, said: “When policy becomes overloaded with too many and contradictory objectives, then negative outcomes are more likely. “As inflation rises and growth slows, a central bank that fails to respond to rising prices will face the prospect of compounding inflationary shocks. Currencies depreciate
INSIGHTS: BEST LAWYERS 2023
Awards honour excellence
• Local lawyers and practices named in annual list of those at the top of their game, writes Lynette Dicey
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he Best Lawyers in SA list has been honouring the professional excellence of lawyers in SA since 2008. Now in its 14th edition, Best Lawyers recognises lawyers across a multitude of practice areas. This year, 46 lawyers were recognised as Lawyer of the Year. The “Lawyer of the Year” honours are awarded annually to only one lawyer per practice area in each region. Lawyers are nominated for consideration and voted on by currently recognised Best Lawyers working in the same practice area and located in the same geographic region. Those who receive high peer reviews undergo a thorough verification process to ensure they are still in private practice. The “Law Firm of the Year” awards recognise a single top firm for its work in a specific legal practice area nationwide. Three firms stand out this year, each winning two categories. ENSafrica wins both the banking and finance law category as well as the tax law category. Pinsent Masons wins both the construction law category and the project finance and development practice category. Cox Yeats Attorneys wins both the insurance law category and the real estate law category. The other winners are Werksmans Attorneys (competition and antitrust law), Bowman’s (corporate law), Adams & Adams (intellectual property), Fasken (labour and employment law), Webber Wentzel (litigation), Cliffe Dekker Hofmeyr (mergers and acquisitions) and Falcon & Hume (mining). Awards are determined based on a handful of factors including lawyer feedback, the
Anthony Norton … experience. number of lawyers included in Best Lawyers for that firm and practice areas, the number of office locations a firm has, historical analysis of the firm’s “Lawyer of the Year” awards, materials submitted by firms and the firm’s overall scope and areas of expertise. This year’s list revealed that intellectual property (IP) lawyers had the most significant increase in headcount. The majority of these lawyers come from two boutique IP powerhouses: Spoor & Fisher and Adams and Adams. The increased focus on IP is logical given the passing into law of the Copyright Amendment Bill this year as well as the pandemic’s impact on media consumption, says Kristen Greer, senior research manager at Best Lawyers. The next largest growth was in corporate law, which is also to be expected given that post the pandemic, business activity is stronger than expected, says Greer. “I was surprised by the lack of increase around administrative and public law as well as oil and gas as public sector wages, social security and the emphasis on climate risks become more frequent and urgent discussions.”
In SA, the top 10 practice areas by size are corporate law, litigation, mergers and acquisitions law, labour and employment law, IP law, banking and finance law, real estate law, competition and antitrust law, construction law and insurance law. Anthony Norton from law firm Norton Inc has been recognised by Best Lawyers 2023 in regulatory practice and competition/antitrust law. He is the 2023 Lawyer of the Year for Johannesburg in regulatory practice. A successful law firm, he says, is a combination of a number of factors. Arguably the most important of these is the level of experience and quality of lawyers. “A large firm which is thin on experience and expertise is unlikely to be very successful given that there is no substitute for either of these attributes.” Law, he adds, is a little like medicine: it’s the quality of the doctor that counts, not the size of the hospital. When selecting a lawyer, Norton recommends being guided by the quality of the individual concerned. “Choose a lawyer based on whether they have the necessary experience and expertise. Consider their track record and the outcomes in the matters in which they have been involved. Similarly, a good firm will have a number of lawyers with experience and expertise in a variety of practice fields.” Norton Inc, a small boutique law firm offering high levels of expertise, has been involved in a number of the largest and most interesting merger deals that have taken place locally, including Impala Platinum’s proposed acquisition of Royal Bafokeng Platinum; Moody’s acquisition of the largest ratings agency in Africa, Global Credit
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Michelle Kucera … adapt. Rating; TFG’s acquisition of Tapestry; and Sanlam’s acquisition of various businesses. In addition the firm acted for eTV when it challenged government’s analogue switch off. It also does a significant amount of work in the white
local lawyers were recognised as Lawyer of the Year in this year’s edition of Best Lawyers, which recognises lawyers across a multitude of practice areas
collar crime space and acts on behalf of listed companies with an extensive regulatory practice. “Our regulatory practice is very strong in relation to competition law antidumping and white collar crime,” says Norton. Smiedt & Associates Attorneys’ Michelle Kucera has been recognised by Best Lawyers in real estate law. Being solutions-based and approachable helps with the firm’s success, says Kucera. “We build relationships with our clients and adapt according to their needs and specific requirements.” She says there has been a shift as clients move to boutique law firms for a more hands-on approach. To see the full list, log on to https://www.businesslive.co.za/ bd/national/2022-11-17lawyers-of-the-year-2023
and investment falls.” Kganyago said solutions to curb unemployment were outside monetary policy and “neither growth nor high inflation lead directly to job creation in our economy. “Much of our employment challenge lies in encouraging the return of economic activity in sectors that have been hardest hit by the pandemic,” he said. The country is dogged by an unemployment rate of 33.9%.
EXPROPRIATION OF LAND
The ad hoc committee on section 25 in September adopted a controversial bill to amend the constitution to allow for expropriation of land without compensation. Organised agriculture has objected to the bill, which is set to be tabled before the National Assembly for adoption, saying the inclusion of the nil compensation clause “will undermine access to capital and capital formation for the sector and economy”. The ANC acknowledged that the service delivery agenda of local government was key to achieving a better life for all communities. It wanted to fasttrack service delivery, improve financial management of municipalities, employ capable and qualified staff, and strengthen local government systems. But the degeneration of the local government sector continues unabated, with many of the country’s 257
municipalities having been run into the ground due to maladministration, looting and corruption, while others are struggling to pay staff salaries. Cosatu general secretary Solly Phetoe told Business Day the labour federation was not happy about the ANC’s lackadaisical approach in implementing its congress resolutions adopted in 2017. “There is no implementation except on the issue of fighting corruption. But even then, many ANC comrades implicated in state capture are not stepping aside, people are not being prosecuted,” Phetoe said. “The ANC has been very slow in dealing with the issue of establishing a state bank. There is no full implementation,” he said. Phetoe also criticised the lack of service delivery, saying “95% of municipalities have collapsed because of corruption. We are not happy about ANC implementation of its resolutions.” Wits University political analyst Prof Susan Booysen said it was a “serious indictment” of the ANC that so little ground had been covered in terms of the party implementing its policy resolutions in government. “In a way, [the slow progress] is a serious indictment on the ANC. It is a governing party on which the hopes of many South Africans rest. This does not reflect positively on the ANC,” Booysen said. mkentanel@businesslive.co.za