Maintenance: To pay or not to pay

The long awaited amendments to the Maintenance Act No. 99 of 1998, has officially been signed off by the President on 9 September 2015. The aim of the new Maintenance Amendment Act No.9 of 2015 is to improve the maintenance system in the following ways:

  • to regulate the lodging of complaints relating to maintenance and the jurisdiction of the maintenance courts;
  • to regulate the investigation of maintenance complaints;
  • to regulate the securing of witness for purposes of maintenance enquiries;
  • to regulate maintenance enquiries in order to provide for the granting of interim maintenance orders;
  • to regulate the circumstances in which maintenance orders may be granted by default;
  • the regulation of cost orders;
  • to regulate the effects of maintenance orders granted by a maintenance court, as opposed to maintenance orders granted by other courts;
  • regulation of the transfer of maintenance orders;
  • regulating the reporting of a maintenance defaulter to any business which has its object of the granting of credit or is involved in the credit rating of persons;
  • to regulate the attachment of emoluments;
  • to increase the penalties for certain offence;
  • to create new offences;
  • to regulate the conversion of criminal proceedings into maintenance enquiries.

Section 11 of the Maintenance Amendment Act No.9 of 2015 has recently made a few waves in the legal fraternity and has resulted in many legal practitioners jumping for joy with the new provision which has amended Section 26 of the Maintenance Act.

Section 26 of the Act provides for the enforcement of maintenance and other orders. While the failure to pay maintenance is comparable with a default judgment in a civil case, the same mechanisms which are designed to prevent the defaulter from continuing to obtain credit, while owing maintenance, was not extended to maintenance defaulters. Section 11 of the Maintenance Amendment Act proposed to insert a new provision within Section 26 of the Maintenance Act so that when a court grants an application which is referred to in section 26(2) of the Act, because an individual has defaulted on his/her maintenance obligations, his/her personal details must be submitted to a business which has as its main objective the granting of credit or is involved in credit ratings of persons. The goal is ultimately to prevent maintenance defaulters from continuing to receive credit while they still owe maintenance.

Due to its novelty in our legal system, this new amendment still needs to find its footing in practice.

Although this amendment seems to address much needed frustration in maintenance disputes, and will definitely encourage the defaulter to think twice before defaulting on a maintenance order, further developments and refinements to ensure the practicality of this amendment is anticipated.

by
Samantha Wonfor
samantha@dyason.co.za

How cosmetics are currently regulated in South Africa

A global increase in demand for natural and organic products, including cosmetics has emerged. Consumers are now more sensitive towards the sustainability of manufacturing processes, its impact on the environment and the absence of harmful ingredients. With South Africa’s unique biodiversity this demand not only creates enormous local business opportunities, but also begs formal legal regulation.

Why the need for formal regulation

Many of the up to 23 ingredients of cosmetic products are imported and subject to an ad valorem or “luxury” tax in addition to excise duties and further considering the volatility of the rand it is clear that the production of cosmetics locally is an expensive business. This is why more and more local manufacturers are turning to South Africa’s indigenous flaura which is regulated by the National Environmental Management: Biodiversity Act 10 of 2004 and the Nagoya Protocol, after South Africa became the 12th signatory in 2013. With local direct selling company, Avon, only trumped by international giant Revlon, having the second biggest market share in South Africa, it is further clear that local manufacturers can and wants to compete internationally. Avon, and other direct selling companies such as Annique, Avroy Shlain, Vanda, Sh’zen and Jean Guthrie already trade freely on the African continent as a result of being part of the Southern African Customs Union.

It is thus surprising that an industry of this extent is currently only self-regulated in South Africa, although the Department of Health (DoH) has proposed a bill to Parliament “…to start regulating the cosmetics industry…” according to Sinah Mosehla, Director of Cosmetics, Department of Trade & Industry (DTI).

Formal regulation is much needed to attend to, amongst other, controversies such as the obligation to register cosmetic products in countries to which such products are exported, while no such registration is required in South Africa, even though South African products are compliant with the International Organisation for Standardization’s (ISO) standards.

Current regulatory framework

The South African cosmetics industry has been self-regulated for years and mainly depends in this regard on the Cosmetic Compendium of the Cosmetic, Toiletry and Fragrance Association of South Africa (CTFA). This comprehensive compendium, containing sections, amongst other, on Good Manufacturing Practice (GMP); primary cosmetics with secondary antibacterial / antifungal function; labelling, advertising and composition of cosmetics in South Africa; microbial testing for cosmetics and a list of substances which must not form part of the composition of cosmetic products has been developed by CTFA in consultation with the cosmetics industry, government and the South African Bureau of Standards (SABS). European regulations were closely followed during this development so that South African cosmetics can also be sold in the European Union.

Oddly enough, when Cosmetics Europe, a personal care association in Brussels, issued an industry-wide notice on 12 December 2014 to discontinue the use of the preservative Methylisothiazolinone (MIT), a leave on skin product, based on clinical data showing adverse skin reactions to this ingredient, CFTA advised that this ingredient is not banned in South Africa until the investigation by the Scientific Committee on Consumer Safety has been finalised.

In case of unsubstantiated claims, when unpermitted ingredients are used or substandard products are sold, complaints can be made with the Advertising Standards Authority (ASA) or the Consumer Commission in terms of the Consumer Protection Act 68 of 2008 which contains section relating to the quality of products in the market; consumer safety; advertising; promotions and marketing; communication between suppliers and consumers and contractual terms and conditions.

Due to the chemical composition of most cosmetics, making it “high” risk products, companies are strongly encouraged to be certified by DQS or SGS as ISO 22716 (GMP) compliant which will serve as a guarantee of quality to consumers.

The Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 regulates the sale, manufacture, importation and exportation of cosmetics, along with foodstuffs and disinfectants due the similar production processes followed during the manufacturing of these products.

In March 2013 the European Union banned any form of animal testing of cosmetic products and their ingredients completely, while organisations such as BUAV, founded by Cruelty Free International, still aim to implement a global ban in this respect. In the meantime companies can obtain the Leap Bunny certificate if their products is found to be produced without animal testing in all of the company’s global operations.

Medical v cosmetic claims

The Foodstuffs, Cosmetics and Disinfectant Amendment Act 8 of 2008 defines a “cosmetic product” as follows:

A cosmetic product shall mean any substance or preparation intended to be placed in contact with the various external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and mucous membrane of the oral cavity with a view of exclusively or mainly to clean them, perfuming them, changing their appearance and/or correcting body odours and/or protecting them or keeping them in good condition

except

where such cleaning, perfuming, protecting, changing, keeping or correcting is wholly for the purpose of treating or preventing disease.”

Any products meant to be inhaled, ingested or applied to body parts not specified in this definition are not cosmetics and might qualify as medicine which must be registered with the Medicines Control Council (MCC) in terms of the Medicines and Related Substances Control Act 101 of 1965 after clinical safety and efficacy have been sufficiently proven. Although primary cosmetics can also have a secondary function, such as an antibacterial or antifungal body wash, such secondary claims can only be made in a cosmetic sense, otherwise the product might be subject to registration as afore mentioned.

In efforts to enhance products’ competitive edge and to circumvent the registration requirements the term “cosmeceutical” has been encountered. However, Item 2.9 of the Medicines Control Council’s Minutes of March 2000 strictly prohibits the use of this term as a result of being misleading. Subsequently any claims, in respect of cosmetics products, implying health related properties must be substantiated with scientific proof.

Thus, to help local producers and manufacturers flourish in the international market and to create much needed jobs in South Africa by making use of our abundant indigenous knowledge and biodiversity, formal regulations must be developed to ensure safety to consumers and legal certainty for manufacturers, producers and suppliers.

Construction and Public Liability

Construction work always carries with it the potential risk of injury or death of a third party and it is accordingly of paramount importance that employers and contractors be made aware of vicarious liability in the event of injury or death of a third party arising from the action or omission of their employees or subcontractors. We will briefly highlight the nature of vicarious liability by referring to case law and how to manage and mitigate such liability.

Vicarious liability in the context of construction was addressed in the 1990 Supreme Court of Appeal decision of Langley Fox Building Partnership (Pty) Ltd (Appellant) v De Valence (Respondent) where the Respondent instituted legal action against the Appellant, the main contractor on a construction site, for damages arising as a result of an injury sustained when her head struck a wooden beam suspended across the sidewalk on which she was walking.

The Appellant’s scope of work included the installation of a ceiling under an overhead canopy which extended over the sidewalk at the entrance to the building where the work was being performed. A subcontractor was mandated by the Appellant to install the ceiling and it was during this process that Mrs Langley sustained her head injury. The subcontractor erected a wooden beam underneath the canopy, but failed to adequately place warning signs at the surrounding area of the beam, alternatively to restrict access around the beam.

The court found the Appellant to be negligent, notwithstanding the fact that the subcontractor erected the beam. It was found that the Appellant should reasonably have foreseen the risk of danger to pedestrians as a result of the work carried out by the subcontractor since an obstruction of this nature on a busy sidewalk would necessarily have created a likely danger for pedestrians using the sidewalk. In light of the fact that the danger was reasonably foreseeable the Court considered whether the Appellant should have taken preventative steps to guard against possible injury to a third party and the Court found that the Appellant made an error to leave the situation in the hands of the subcontractor and had a duty to take adequate steps to protect the public against the imminent danger.

In order to determine whether an employer and in this instance the main contractor could be held liable for the acts of an employee or subcontractor, the Court established a test based on three broad questions:

1.1. Would a reasonable man have foreseen the risk of danger in consequence of the work he employed the subcontractor to perform? If so,

1.2. Would a reasonable man have taken steps to guard against the danger? And, if so,

1.3. Were such steps duly taken?

Accordingly, using the above three questions, an employer may be held liable for the consequences of a subcontractor where such contractor fails to take the necessary steps to prevent harm to the public and actual harm occurs. Courts may also take other factors into consideration, such as the nature of the danger, the context in which the danger could arise, the degree of expertise available to the employer and subcontractor respectively and the means available to the employer to avoid probable danger.

Appropriate public liability insurance is a vital requirement for any main contractor involved in construction projects. Moreover, to further limit the effects of vicarious liability, it is essential that employers and their subcontractors conclude appropriate agreements which determine who is responsible to carry the risk of injury or death to a third party. These agreements normally take the form of a subcontractor or service agreement and contracting parties should ensure that the following aspects are dealt with in such agreements:

2.1. the agreement must be clear that the subcontracted works are provided independently from the main contractor;
2.2. the agreement must clearly state that there is no requirement of supervision or control by the main contractor over the subcontractor;
2.3. the duration of the agreement must be for a fixed or determinable period;
2.4. the subcontractor must contractually accept responsibility for the negligent acts of its employees;
2.5. the agreement must contain a proper indemnity clause;
2.6. the agreement can provide for public liability insurance;
2.7. the agreement can provide for specific health and safety requirements.

These are just some of the most important aspects that should be considered for inclusion in subcontractor agreements. Having regard to the sometime irreversible and substantial impact that injury or death to a third party can hold, it is imperative that contractors mitigate their risk exposure through appropriate insurance strategies and clear subcontracting arrangements that allocate risk appropriately.

by
Francois van Zyl
francois@dyason.co.za