The Litigo // July Newsletter 2019

PROCUREMENT LAW: WE CAN HELP YOU SAVE MONEY


Marquerite Schoeman

Have you ever thought about how you can make your company more cost-effective and subsequently more productive in an ethical manner?

Procurement is a massive part of any Company’s costs. In fact, studies have shown that the procurement category represents about 30% to 70% of a company’s total spend[1].

In order to achieve this one must make sure that your procurement strategy understands your company’s corporate strategy and its objectives, and thereafter identify how it can effectively support this strategy. This is important for any company where the executives of the company wants to reduce costs. One way of doing this is by involving the procurement department which will then do a spend analysis / audit on the company’s costs / total spend in order to determine potential cost-cutting avenues to increase profit.

Another aspect to keep in mind is to identify what the most profitable products or services are in your company and then to focus your supply chain strategy on these popular products or services.

Is your company using too many different suppliers to provide services? An avenue to consider to reduce these strenuous suppliers and costs is by implementing fixed-term agreements instead.

Furthermore, one should also keep in mind that procurement outsourcing is an avenue that can be explored if you feel that your company’s main focus should lie with its core business objectives.

No matter how you look at your company’s overall strategy, viewing your procurement strategy takes a fundamental shift in perception, however, if you are prepared to make that shift, your company will become much more profitable and sustainable as the correct procurement strategies and procedures are a significant driver of growth and profit in any company.

Should you have any further queries on how you can save costs, time and money in your business, contact our new procurement law department for further assistance.

  • [1] Article by Sean Kolenko at Spend Culture – How procurement can make your business profitable dated:
    4 September 2014

UNFAIR ADVANTAGE: IS IT REALLY UNFAIR?


Candice Grace

The ongoing debate surrounding “unfair advantage”, whether it is considered socially, economically or competitively, has always been a controversial topic. The recent decision by the IAAF against South African athlete, Caster Semenya, has reignited worldwide opinions as to what constitutes fairness. This article will discuss the realms of fairness and equality by referring to Semenya’s case in light of social theories.

Background

In 2018, a new regulation was introduced by the IAAF whereby female athletes with naturally-occurring, high testosterone levels (5nmol/L or higher) have to adhere to certain requirements in order to compete on an international level. Specifically, the aforesaid athlete would be required to use supplements for a six month period in order to reduce her testosterone level below 5nmol/L. The testosterone level acceptable by the IAAF in these circumstances is still higher than the testosterone level which is present in the average female athlete, who has a natural level of testosterone ranging between 0.1 – 1.8nmol/L.[1]

As a result of the above decision by the IAAF, Caster Semenya (who was born with high levels of testosterone) plans to appeal the ruling. In order to understand whether the decision by the IAAF is right or wrong, one must first look at what is socially accepted as “fairness”.

Fairness in a social context

In the field of jurisprudence, philosophers have developed theories to try and establish fairness in the law and society.

John Rawls has established a Theory of Justice which includes a principle relating to economic and social inequalities. The first leg of this principle is “fair equality of opportunity”. This means that people are more likely to accept inequalities in situations where higher-paying jobs are assigned fairly. In essence, individuals are given an equal opportunity to apply for the higher-paying jobs without limiting or barring a certain person / group with the same talents and skill sets from applying.[2]

Applying this situation to Semenya’s case raises two contradictory ideas. Firstly, female athletes with normal to low levels of testosterone could consider the inequality resulting from Semenya competing internationally as unfair. Rawls specifically refers to people being more acceptable to inequalities if they are awarded an equal opportunity to apply. Would the average female athlete find that they have an equal opportunity to win against a competitor who has testosterone level approximately four times higher than that of the other competitors?

Alternatively, the above principle can be interpreted differently. All participants are provided the equal opportunity to compete, so whether one individual excels as a result of her natural talent and ability, there are no constructive barriers prohibiting the other athletes from fairly competing.[3]

Another principle one should consider in determining the fairness of the decision by the IAAF is the Utilitarianism Principle. This theory distinguishes right and wrong exclusively on the consequences from choosing one action over another.[4] The determination of whether an action is right or wrong cannot be identified prior to the event taking place. This theory is not individualistic but considers the interests of other’s above the interest of one.

There are two principles worth discussing under the umbrella of Utilitarianism. Namely, Betham’s Principle of Utility and the principle established by John Stuart Mill.

Betham’s principle compares pain and pleasure in human life. Going beyond that, he takes into account the duration, intensity, certainty / uncertainty and nearness / farness of each action, as well as the extent of the consequence that will follow from taking such an action. Lastly, he takes into account the extent of the impact of an outcome / consequence on a number of people.[5]

Mill’s principle can be classified as an adjustment or extension of Bentham’s principle. All the elements of Bentham’s philosophy are present but instead of pleasure being the determining factor, happiness is the central tenant of Mill’s principle. This is referred to as the “Greatest Happiness Principle”. The main goal is to choose the action that will result in the greatest happiness for the most people.[6]

In applying the above to Semenya’s case, we should consider the decision that will bring the greatest amount of pleasure/happiness to the most people. This is not an easy task to establish because happiness is relative and in these circumstances, one person will always be prejudiced at the expense of others.

To determine if the decision by the IAAF is fair, we should consider it in light of the rule – utilitarianism. The Principle of Utility, in essence, is to determine the validity of rules of conduct against morality.

Therefore, determining a wrongful act can only take place when breaking those rules of conduct.[7] A prime example of this would be when the Russian athletic team (males and females) were banned from competing at the Winter Olympics last year due to the presumption that majority of the athletes had consumed performance-enhancing substances.

The act by the aforesaid athletes was found to be wrong in light of the rules of conduct instituted by the IAAF and had the consequence of excluding the wrongful athletes from competing. If these athletes had to face the consequence of not being able to compete as a result of increasing their hormone levels, would it not be fair to say that Semenya cannot compete in the same category as those with lower hormone levels?

This is not to insinuate that she is banned from competing, but rather consider that the fairest option to achieve the greatest level of happiness for the most people (as per the Utilitarian Principle) would be to move her in a different category with athletes who have higher levels of testosterone, or regulate her testosterone levels to below 5nmol/L.

Conclusion

There is no right or wrong answer as to how fairness is determined. When considering the decision by the IAAF to the above social principles, one may conclude that fairness is achieved from the greatest amount of happiness for majority of the people and inequalities are only justified against equal opportunity.

Therefore, the decision by the IAAF to regulate Semenya’s testosterone levels to below 5nmol/L in order to internationally compete can be viewed as fair and reasonable since most female athletes are born with average levels of testosterone between 0.1 – 1.8nmol/L. Semenya is considered an anomaly in this situation. Furthermore, the reduced level of testosterone as accepted by the IAAF in order for an athlete to compete is still much higher than the natural level of the average female athlete. This still puts Semenya at an advantage in comparison to her competitors.

PULLED OVER FOR SPEEDING? KNOW YOUR RIGHTS


Arista Mootheram

A recent judgement has been published relating to the camera that is used by metro and traffic police officials when regulating speed limits. The judgment was handed down by the Acting Deputy Judge President, S. Naidoo in the High Court of South Africa Free State Division, Bloemfontein, in The State v Gomolemo Thakanyane wherein a matter automatically went on review in terms of Section 302 of the Criminal Procedure Act, 51 of 1977.

The Accused in the matter was charged in the Brandfort Magistrate’s Court for contravening section 59(4)(a) of the National Road Traffic Act 93 of 1996 for allegedly exceeding the speed limit of 80 km per hour and travelled at 141 km per hour.

The accused pleaded guilty in terms of Section 112(1) of the Criminal Procedure Act. However, a query was addressed to the Magistrate who sentenced the accused, relating to whether or not the accused when pleading guilty to the charge, admitted to the following:

  1. The recorded speed;
  2. The proper function of the speed measuring device; and
  3. The competence of the traffic officer to set up and operate the speed measured.

These requirements were handed down by a Full Bench in the case of The State v Phuzi [2018] ZAFSHC 213.

In furtherance to the above, it is the State’s duty to prove that the device that is used to measure speed is reliable for the purpose of capturing one’s speed; that the device determined and registered the speed accurately and that the device was properly set up in accordance with the manufacturer’s specifications. It is of utmost importance that the person who operates the device is trained to do so and this be admitted in order to prove that the speed was measured in accordance with the manufacturer’s specifications.

In light of the above, it has recently been discovered that people who have been caught speeding using the ProLaser 4 speed gun may just as well get off scot-free from the charge. This is as a result of the failure in proving that the ProLaser 4 speed gun underwent the necessary tests and approval required from an independent laboratory in order for it to be legally used in the country. It has come to knowledge that the software and hardware versions of the ProLaser 4 speed gun are unknown and the fact that there is no evidence that the device was sealed after it had been calibrated by the distributor, also creates uncertainty as to the accuracy of the speed gun.

Therefore, should you be pulled over for speeding, you have the right to politely ask the metro police officer to see the calibration certificate for the speed measuring device and you may also ask to see the operator’s certificate of the officer who is operating the measuring device. You also have the right to ask the metro police officer to see his or her appointment certificate as a peace officer.

Should they refuse to show you any of the above, it is best advised that you remain silent and note same in your defence.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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