The Constitutionality of Diocesan Legislation Relating to Same-Sex Blessings and Marriage in the Anglican Church of Australia: A Case Note

In November 2020, the Appellate Tribunal (the Tribunal) of the Anglican Church of Australia (ACA) provided its opinion on references as to the constitutionality of diocesan legislation relating to same-sex blessings and marriage. There were two concurrent references about a marriage blessing service intended for use in the Diocese of Wangaratta (the Wangaratta references). There were also two concurrent references about the Clergy Discipline Ordinance 2019 Amending Ordinance 2019 of the Diocese of Newcastle (the Newcastle references).

Pharmaceutical Phonies: The Entanglement of Fraud, Third-Party Payors, and Proximate Cause in Civil RICO Cases

This Case Note analyzes the Ninth Circuit’s approach to the issue of whether patients and doctors destroy proximate cause in cases where third-party payors (“TPPs”) sue drug companies for fraudulently misrepresenting the health risks associated with their products. In the 2019 case Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals Co., the Ninth Circuit held that TPPs suing to recover damages from a pharmaceutical company for the fraudulent omission of a drug’s health risks could satisfy the proximate cause requirement for a civil cause of action under § 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The Ninth Circuit’s decision is satisfactory in that it faithfully (1) observes the Supreme Court’s direct relation test and (2) follows precedent establishing that a plaintiff satisfies the proximate cause requirement when their alleged injury is a foreseeable and natural consequence of the defendant’s fraud. As a matter of public policy, this holding is positive because it hamstrings pharmaceutical companies’ ability to escape liability by hiding behind patients, doctors, and other actors inhabiting the chain of causation. Additionally, the Ninth Circuit’s holding is positive in that it adheres to Supreme Court precedent and helps deter future injurious conduct. In support of these assertions, this Case Note begins by examining the factual background and procedural posture of Painters. The Note continues by analyzing the majority’s opinion with respect to related case law and closes by suggesting ways to address some of the potential problems that could stem from the Ninth Circuit’s decision.

Judicial probity and ethical standards: The Judicial Conduct Tribunal’s decision on Judge President John Hlope

This case note on the Judicial Conduct Tribunal’s (hereinafter, “the tribunal”) decision regarding Judge President John Hlophe (hereinafter, “Hlophe” for the sake of brevity) in April 2021 is prompted not only by the increasing attacks on the South African judiciary, but also by the moral force which underlies the rule of law and the independence of the judiciary as constitutional guarantees.

DISMISSAL ARISING FROM FLOUTING COVID-19 HEALTH AND SAFETY PROTOCOLS Eskort Limited v Stuurman Mogotsi [2021] ZALCJHB 53

The Labour Court judgment handed down by Tlhotlhalemaje J in Eskort Limited v Stuurman Mogotsi (JR1644/20) (2021) ZALCJHB 53 (Eskort Limited) on 28 March 2021 raised the topical issue of fairness regarding the dismissal of an employee for gross misconduct and negligence related to his failure to follow and/or observe COVID-19-related health and safety protocols put in place at the workplace (Eskort Limited supra par 1).In light of the above, the objectives of this case note are twofold. First, it examines the parameters under which the employer can discipline an employee for flouting the COVID-19 safety protocols and regulations. Secondly, it also considers the extent to which the employer can take appropriate action against an employee who wilfully refuses to obey the lawful and reasonable instructions of the employer during COVID-19 times.

BREACH OF THE IMPLIED DUTY TO PRESERVE MUTUAL TRUST AND CONFIDENCE IN AN EMPLOYMENT RELATIONSHIP: A CASE STUDY OF Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019)

This case note is intended to revisit the contentious aspect of the implied duties of South African labour law in the individual employment relationship. Significantly, the case note intends to remind the reader about the importance of adhering to certain implied duties in the contract of employment. In this regard, the implied duty to preserve mutual trust and confidence is the central theme of this case note. On the one hand, the implied duty to safeguard mutual trust and confidence imposes an obligation upon the employer to conduct itself in a manner not likely to destroy, jeopardise, or seriously damage the trust relationship and confidence in the employment relationship. On the other hand, this implied duty is becoming a significant yardstick used by employers to address contractual labour disputes in South Africa. In order for an employer to invoke this implied duty, it must be expected that the employee would have to conduct him or herself in a manner likely to demonstrate to his employer loyalty, good faith and cooperation.Against this background, the recent case of Moyo v Old Mutual (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) (Moyo) demonstrates the impact of a breach of the implied duty to preserve mutual trust and confidence on the employment relationship. This case note intends to examine the implied obligation that rests upon the employer to safeguard trust and confidence in the relationship. The case note further reflects on the implied duty of employees to safeguard and protect mutual trust and confidence. After all, trust forms the basic fundamental core of the employment relationship, and any breach of this duty is likely to result in an irretrievable breakdown of the employment relationship. Once there is a breakdown of trust and confidence, it remains a mammoth task to restore the relationship.

No Liability for Planting a Protected Plant Variety and Harvesting Fruit that Is Not Liable to Be Used as Propagating Material

Nadorcott, with case note by José Corberá Martínez

Phacoemulsification combined with micropulse cyclodiode laser in glaucoma patients: efficacy and safety

Objective To evaluate the safety and efficacy of phacoemulsification combined with Micropulse transscleral cyclophotocoagulation (MP-TSCPC) in glaucoma patients. Methods This is a retrospective case-note review. The participants were adult patients with diagnoses of glaucoma and cataract who required a further reduction in IOP or a reduction in the number of glaucoma drops. All consecutive patients who underwent cataract surgery (CS) combined with MP-TSCPC laser between October 2018 and July 2019 were included in the study. The effect on visual acuity (VA), intraocular pressure (IOP) and number of anti-glaucoma drops were evaluated at 6 and 12 months in addition to any complications that occurred during any time point of the study. Results 42 eyes were included in the study. Mean IOP was reduced from 19.5 ± 5.4 mmHg by 22.5% to 15.1 ± 4.6 at 6 months post-operatively and by 19.5% to 15 ± 6.6 mm Hg at 12 months (p < 0.001 at both time points). The number of anti-glaucoma medications also reduced significantly from 2.8 ± 1.3 to 1.6 ± 1.2 at 6 months and to 2.2 ± 1.3 at 12 months (p < 0.001 at both time points). The success rate was 56% at 6 months and 54% at 12 months. 54.7% of our patients who completed 12 months follow up had an improvement or unchanged vision at the last visits. Conclusion This is the first study evaluating the effect of cataract surgery combined with MP-TSCPC in glaucoma patients. We demonstrated that this led to a reduction in IOP and the number of anti-glaucoma medications at 6 and 12-month postoperatively. The majority of patients had either stable or better vision at 12 months follow-up.

Determining the True Reason for an Alleged Section 187(1)(c) Dismissal: A Discussion of National Union of Metalworkers of South Africa v Aveng Trident Steel (a Division of Aveng Africa (Pty) Ltd) (2021) 42 ILJ 67 (CC)

On 27 October 2020, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) 2021 42 ILJ 67 (CC). Following the judgment, it is now commonplace that the amendment to section 187(1)(c) of the Labour Relations Act, 1995 does not preclude an employer from dismissing employees for a permissible reason, such as its operational requirements, should they refuse to accept a demand. The court confirmed that in cases such as this where they are faced with two opposing reasons for the dismissal, an impermissible reason on the one hand and a permissible reason on the other, an enquiry must be conducted into what the true reason for the dismissal is. However, the approach to be followed in conducting this enquiry caused dissent. Half of the judges were of the view that the correct approach is to follow the causation test set out in SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC), while the other half disavowed reliance on the causation test. Instead, they opted to support the enquiry conducted in Chemical Workers Industrial Union v Algorax (Pty) Ltd 2003 24 ILJ 1917 (LAC). This case note seeks to establish which approach should be followed in determining the true reason for an alleged section 187(1)(c) automatically unfair dismissal.