Business Law Focus

In this edition of Business Law Focus host Evan Pickworth interviews Angela Simpson, Lydia Shadrach-Razzino and Verushca Pillay, transactional lawyers in the Johannesburg office of global law firm Baker McKenzie.

They unpack the latest M&A, Private Equity and BEE trends in Africa, highlighting among others that South Africa may have been averaging about 25 delistings a year, but this may present a good opportunity for private equity. They also delve into possible B-BBEE Act amendments to include administrative penalties and criminal sanctions for non-compliance.

In this edition of Business Law Focus, host Evan Pickworth interviews Tendai Jangara, Director in the Dispute Resolution practice at Cliffe Dekker Hofmeyr (CDH) about the ongoing plight of increasingly unloved whistleblowers. Among others, they discuss whether it was fair to ask André de Ruyter, after exiting Eskom in the wake of a poisoning scandal, to back up his further corruption allegations and how this could have been better handled. They look into how amendments to the Protected Disclosures Act should ensure that provision is made for future job security, or financial, emotional, legal or other support for whistleblowers and their families. They also cover the often neglected ground of when whistleblowing is used as a ruse, or for malicious intent by those with ulterior motives.

The Context

While corporate South Africa has made great strides in promoting employee wellness and the right to speak against unfair treatment in the workplace, the same cannot be said for whistleblowing. Whistleblowers play a crucial role in the exposure of serious criminal activities, including fraud and corruption and unfortunately, often suffer occupational detriment and even lose lives as a result of their desire to act in the best interests of employers. A fundamental mind shift by employers is required to understand that whistleblowers act, at great risk to themselves, not to negatively impact their workplaces but to expose malfeasance with the aim of protecting places of employment and assets.

The Protected Disclosures Act, 26 of 2013 (PDA), is inadequate when considering retribution which extends beyond the bounds of employment, including threats to life, financial detriment and legal costs. The Labour Relations Act, 66 of 1995 (LRA) provides for compensation of loss of income, for example, but this is limited to an amount not exceeding 24 months' worth of remuneration where a whistleblower can suffer reputational damage which prevents them from securing employment indefinitely.

It is necessary to amend the PDA to include mechanisms for whistleblowers to report activities to a regulated body that can immediately activate a system for protection, at the time of reporting, which considers the whistleblower not just as an employee, but a person whose life, overall well-being and financial interests must be secured. It is imperative that a proactive approach be taken to guarantee the safety and financial well-being of whistleblowers as retaliatory actions usually impact these areas causing irreparable harm. When the legislation is amended and shown to be effective in guaranteeing whistleblower protection, it is likely that an increase in reporting using whistleblowing mechanisms, including direct statements and hotlines, will be experienced in both the private and public sectors.

South Africa’s Minister of Finance, Enoch Godongwana, delivers his budget speech on 22 February and in this edition of Business Law Focus, host Evan Pickworth interviews Charles de Wet, tax executive at ENSafrica, about what may be in store for long-suffering taxpayers.

This comes as the devaluation of the rand and rising inflation rates, the aftermath of the Covid-19 pandemic and the continuing war in Ukraine pose a significant challenge for South Africa to restore the health of its public finances to a sustainable position. Load-shedding will also have a significant impact on the tax base.

With SA's crucial mining indaba taking place from 6-9 February, Business Law Focus host Evan Pickworth interviews Ntsiki Adonisi-Kgame and Mihlali Sitefane from ENSafrica on whether policy support is sufficient to spark change and drive investment.

With the United Nations Climate Change Conference, or COP 27 grabbing global headlines, Business Law Focus Editor, Evan Pickworth, spoke to Mohamed Ghannam, Managing Partner of Baker McKenzie in Cairo; Oludare Senbore, Partner at Aluko & Oyebode in Nigeria and Kieran Whyte, Partner and Head of the Energy, Mining & Infrastructure Industry Group at Baker McKenzie in Johannesburg about the efforts taken by the governments in their countries to address this urgent need to harness renewable power. Such efforts are expected to provide exciting opportunities for investors in the African energy sector.

Should South Africa not meet the international standard and compliance rules on money laundering as set by the Financial Action Task Force (FATF), it could be added to the FATF “greylist” as early as April next year. This could hit investment and businesses, but more importantly will certainly knock SA’s global reputation and standing.

Business Law Focus host Evan Pickworth interviews Steven Powell, Era Gunning and Amelia Warren from ENSafrica about the risks and whether enough progress is being made to prevent this.

Business Law Focus host, Evan Pickworth speaks to Francis Mayebe, Candidate Attorney and Virusha Subban, Partner and Head of Tax, Baker McKenzie Johannesburg about the power of SARS to search and seize your property without a warrant, and what the law says about this. We zone in on  a case that highlighted this issue and what businesses and individuals should know about the power of the South African Revenue Service to search and seize your property.

In this edition of Business Law Focus host Evan Pickworth interviews Andries Myburgh, Ntabaleng Sekabate and Mansoor Parker from ENSafrica just ahead of the mining indaba. They dig into key legal changes in the sector and where the gaps and opportunities lie.

In this edition of Business Law Focus, host Evan Pickworth speaks to partners at Webber Wentzel, Sarah McKenzie and Maria Philippides about increasing public and regulatory scrutiny of the ESG claims being made by companies. Recent litigation is a salient lesson in risks posed by those who make misleading claims. There has been no direct or explicit greenwashing litigation in South Africa or ESG-related enforcement action by South African regulators, but South African legal and regulatory laws create the platform and cater for the possibility of greenwashing claims and litigation.

In the next edition of Business Law Focus, host Evan Pickworth interviews Mansoor Parker, Executive in the tax practice at ENSafrica.

The spotlight is on the implementation of corporate due diligence and accountability of undertakings with business activities in the EU – and notably what this means for SA companies. The new Directive is likely to have far-reaching implications.