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Developments in competition law in post-pandemic Africa

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Image Credit: Getty Images/iStockphoto

With the growth of economies across Africa, competition law has remained one of the key drivers for effective market participation, consumer protection and fair business practices. However, the global pandemic introduced new challenges for competition authorities in Africa and abroad, with each enforcer pursuing the most beneficial enforcement method for its national or regional jurisdiction.

According to Lerisha Naidu, Partner in Baker McKenzie’s Competition & Antitrust Practice in Johannesburg, “These efforts were aimed at curbing the persistence of unjustified price hikes, anti-competitive cooperation between competitors and other harmful business practices that sought to undermine competition. In addition to the urgent responses to the unprecedented impacts of the global COVID-19 crisis, competition authorities in countries and regions across Africa continued to introduce new laws and amend existing legislation as a sign of the rapidly increasing prioritisation of competition law enforcement on the continent.”

COVID-19 Responses

Competition authorities across the continent had already established strategies for maintaining competition and limiting instances of customer exploitation in their respective countries by early March 2020.

“Competition authorities in Kenya, Malawi, Mauritius, Namibia, Nigeria and South Africa reacted quickly to pandemic impacts by introducing new guidelines and regulations,” noted Angelo Tzarevski, a senior associate in Baker McKenzie’s Competition Practice in Johannesburg.

Amendments to existing laws

Various jurisdictions have recently strengthened their competition law regimes by way of amendments to the existing legislation or by introducing entirely new laws to facilitate their enforcement efforts.

“For example, Botswana’s Competition Act came into force at the end of 2018.  Kenya recently introduced a host of new laws, guidelines and rules that relate to buyer power, the valuation of assets in merger transactions, block exemption of certain mergers from notification, merger thresholds and filing fees, market definition, and new guidelines for the determination of administrative penalties. Ghana’s Draft Competition Bill is currently before parliament awaiting passage into law, and Egypt and Mauritius amended their competition legislation by introducing or giving effect to new provisions and regulations. In South Africa, price discrimination and buyer power provisions that were previously introduced by the Competition Amendment Act have since come into effect. Regulations were also issued to facilitate the interpretation and application of these provisions,” said Tzarevski.

In addition to country-specific regulation, a number of regional competition regulators in Africa are impacting domestic markets. Such regulators include the West African Economic Monetary Union (WAEMU), the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA), the Economic Community of West African States (ECOWAS) and the Economic and Monetary Community of Central Africa (CEMAC). While not a regional regulator, the African Competition Forum, an association of African competition agencies, promotes competition policy awareness in Africa and the adoption of competition policies and laws. The Forum also facilitates regular contact between authorities, creating a platform for the sharing of best practice and domestic competition trends.

“African competition law continues to develop at a rapid pace, boosted by the implementation of protective strategies necessary during the peak of the pandemic. An increasing number of jurisdictions have adopted laws and regulations, established authorities, secured membership to regional antitrust regimes and ramped-up enforcement of suspected violations of prevailing competition laws at both domestic and regional levels.

As such, organisations transacting across borders in Africa must ensure they are compliant with a myriad of local and intersecting regional competition laws to avoid facing the wrath of the continent’s competition authorities. Access to standardised, cross-border information on the latest competition law developments in Africa has become essential for those transacting in the region,” added Naidu.

Baker McKenzie recently produced a comprehensive guide covering the latest developments in African competition law in 25 countries across the continent – An Overview of Competition & Antitrust Regulations and Developments in Africa: 2021

By Angela Matthewson for Baker McKenzie Johannesburg

 

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The Importance Of Good Legal Advice When Doing Business In Nigeria Today – Morenike George-Taylor

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Morenike George-Taylor, Group Managing Director of the Flux Group (Image: Morenike George-Taylor)

Every business owner and consultant knows that taking into consideration, COVID -19 lockdowns, END SARS protest, the twitter ban and the rate of the dollar to the Naira, business in Nigeria has been a roller coaster between 2020 and 2021. Business owners had to learn a lot of things and I hope to share them in a series of articles.  However, I want to emphasize the importance of good legal advice when doing business in Nigeria. Simply put… it is critical.

Once the COVID-19 lockdown happened, it was a shock to everyone that we could all put our businesses on hold and be forced to work remotely. Zoom became more popular and it became more difficult to physically sign documents. People started using electronic signatures to sign their documents. The question is whether under Nigerian law, an electronic signature is as good as a physical signature. If someone appends an electronic signature to a document, how can you be sure it is their signature? How can you be sure that they wouldn’t deny that signature later on?

More legal issues arose with END SARS, more people had to look into what their insurance contracts cover and do not cover. With the rate of the dollar, loan agreements where businesses collected international funding went awry. A $100,000 loan given in 2019 and repayable in 2021 was now significantly harder to repay and businesses explored whether the drastic rise in the exchange rate was enough to constitute force majeure.

In the midst of all this, those with good lawyers were able to navigate the troubled waters and find solutions even where they were in between a rock and hard place. Those without good lawyers made mistakes that cost them a lot of money. A lot of businesses folded up because they were unable to survive. This is why I have the following tips:

  1. Always read legal documents before you sign them.
  2. Pay attention to the exclusion clauses in your insurance contracts.
  3. Only accept electronic signatures from trusted clients whose signatures you can confirm.
  4. Pay attention to force majeure clauses in loan agreements you execute and be careful and consider all mitigating and hedging products that can help when receiving loans repayable in foreign currency.
  5. Put everything in writing, agreements, orders, receipts and so on.
  6. Get a good lawyer on retainer.

We are all trying to survive and build thriving businesses. I hope these tips save you a penny or two as you run your business.

Article by: Morenike George-Taylor

 

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South Africa: Guidance issued on mandatory vaccination policies for the workplace

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Image: WHO

South Africa: After months of speculation, the Department of Employment and Labour in South Africa has provided guidance in relation to vaccination policies within the workplace. On 11 June 2021, the Minister published an amendment to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Directive), which makes provision for employers to implement a mandatory vaccination policy in its workplace.

Implementing the policy

Before an employer implements such a policy, it must undertake a risk assessment within 21 days of the Directive being published, i.e. by 2 July 2021. This risk assessment must:

• take into consideration the employer’s operational requirements;
• indicate whether it intends to implement a mandatory vaccination policy;
• identify which employees it will require to be vaccinated based on the risk of acquiring COVID-19 at work, or the risk of severe COVID-19 symptoms due to the employee’s age or co-morbidities; and
• be conducted in accordance with section 8 and 9 of the Occupational Health and Safety Act, which places a duty on the employer to maintain a working environment for its employees and other persons that is safe and, as far as reasonably practicable, free from health risks.

Developing a plan

The employer must then develop a plan which sets out the measures it will implement to ensure the workplace is safe for its employees. This plan should indicate whether the employer intends to make the vaccine mandatory for any employees, and must identity the employees who will be required to be vaccinated, the process which will be followed to ensure compliance with the Directive and whether the employer plans to make the vaccine mandatory as and when it becomes available to employees. Any employer who is of the opinion that the vaccination of its employees is necessary for their health and safety may implement a mandatory vaccination policy. The employer’s risk assessment should, however, support this requirement and indicate that there is a legitimate need for the workforce to be vaccinated.

Right to refuse

The Directive sets out guidelines to employers when drafting and implementing a mandatory vaccination policy. In terms of the guidelines, importance is placed on “public health, the constitutional rights of employees and the efficient operation of the employer’s business.” Where an employer makes vaccination mandatory, it must notify each employee identified in the plan that such employee must be vaccinated as and when the vaccination is available to them, and that the employee may consult with a health and safety worker or trade union representative, should the employee wish to do so. Further, the employer must inform the employee of their right to refuse the vaccine on medical or constitutional grounds. These grounds are specified in the guidelines and makes provision for an employee to refuse the vaccine on the medical basis of a “contra‑indication” of the vaccine (i.e. an allergic reaction to the first dose of the vaccine or to a component of the vaccine), or the constitutional basis of the employee’s right to bodily integrity and/or right to freedom of conscience, religion, thought, belief and opinion, as set out in section 12 and 15 of the Constitution.

The Directive prescribes that where an employee does raise one of these objections, the employer is required to counsel the employee, refer such an employee for a medical evaluation for any allergic reaction to the vaccine and, where necessary, reasonably accommodate the employee in accordance with the Code of Good Practice: Employment of People with Disabilities, as published in terms of the Employment Equity Act. Such reasonable accommodation may include allowing the employee to work offsite, at home, in isolation at the workplace, or in limited circumstance, the employer may require the employee to work with a N95 mask.

Where an employer does implement a mandatory vaccination policy and an employee refuses to be vaccinated, the employer must ensure that the grounds for refusal are considered fully and that the employee is consulted in relation to the grounds raised. However, should the employer be unable to reasonably accommodate the employee and the employee continues to refuse to be vaccinated, an incapacity procedure must be followed before the employer may terminate the employee’s contract.

Paid time off

In terms of section 4(1)(k) of the Directive, employers must give employees paid time off at the date and time of their vaccination, regardless of whether such vaccination is in terms of a vaccination policy or not, and sick leave must be used should an employee experience any adverse side effects from the vaccine. An employer may request proof of the vaccination when returning to work, or proof that the vaccination will take place during working hours. Where an employee is vaccinated in terms of the mandatory vaccination plan, the employer must afford the employee paid time off for adverse side effects of the vaccine, even if the employee has exhausted their sick leave entitlement. Alternatively, the employer may lodge a claim with the Compensation Fund, in terms of the Compensation for Occupational Injuries and Diseases Act. In addition, the employer should organize transport to and from the vaccination site, if possible, for employees identified in the mandatory vaccination policy.

Next steps

In order to comply with the Directive, employers must update their risk assessment of the workplace, taking into consideration any employees who are required to be vaccinated. Employers must take notice of the timeframe afforded by the Directive and ensure that the plan is in place before the 21 day period has lapsed. It is important for employers to conduct the risk assessment objectively and determine the actual need for vaccinations in the workplace and amongst certain categories of employees. Further, any objection raised by an employee should be considered seriously and the employer should try to accommodate such employee where possible. However, the employer may dismiss the employee for incapacity as a last resort.

By Kirsty Gibson, Associate, and Johan Botes, Partner and Head of the Employment & Compensation Practice, Baker McKenzie Johannesburg

 

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Tiyani Majoko: New York City based legaltech startup Founder on 10 years in the legal industry

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Tiyani Majoko is a lawyer and the Co-founder of New York City based legaltech startup Anü, a legal services marketplace. She is experienced in product design, identifying customer segments (user and buyer personas), data analysis and Agile. Tiyani talks to Alaba Ayinuola on her 10 years journey in the legal industry, starting from Biglaw, to in-house counsel, to running a small firm, to starting a legal tech company and I am always exploring something new. Excerpt.

In the beginning:

Life in Biglaw

On 3 January 2011, I pulled up to 22 Fredman Drive which were the offices of Eversheds (now Hogan Lovells). It was my first day at work as a Candidate Attorney, a 2-year journey as an apprentice in a law firm which culminates with passing the attorney bar/board exams. I bounced out of bed both nervous and excited that I was taking the first step in my career. I asked my dad to help me iron my outfit for the day; white shirt and black slacks, then I tied back my dreadlocks and put on my sensible black heels that he had bought me.

My dad, who is also a lawyer, was visibly beaming that I had been selected as a Candidate Attorney at an international law firm and I was following his footsteps. He had taken 2 weeks off to help me furnish my apartment, get comfortable with the route to work (though I didn’t have a driver’s license yet) and settle into my new life as a solicitor. Then he returned to his own law firm and practice in Zimbabwe.

At the end of orientation week, I knew the law firm life was not for me. I started my first 8 months rotation in a litigation team, where the only highlight of that rotation was the team and free lunches at advocates chambers. During that rotation I may or may not have forgotten to go to court to note a judgment. The daily time sheets, indexing and pagination of court files, carting files up and down to advocates offices for a 0.4 time entry and forced interactions at month end drinks were the bane of my existence. People would look forward to, or dread, the month end billing report as it revealed who was rising or bubbling under budget.

It was only later when I learned what really matters isn’t what you bill, but what you invoice and eventually collect!

I also learned about office politics and the power players of the firm if you wanted to be offered a position as an associate at the end your 2 year period as a Candidate Attorney.

The rainmaker whose team operated by its own rules (coming in at 10am and leaving at 4pm), the partner who had been at the firm all his 40 year career, the partners who struggled to make budget and how we all tried to stay away from them because they wouldn’t be in a position to retain you as an associate. There was also the partner who never took on a female or black associates, the partner who only took on LGBTQ associates and so I made a concerted effort to join the team of the partner who only took on Black associates.

She ran the mining team, working with international mining companies in helping them to obtain and retain their licenses to operate. This was the first time I felt like I was doing something I enjoyed- it was an all Black, female team. We would go on long road trips to visit mining clients, communities or regulators. I got to spend a lot of time out of the office- away from my time sheet, going to mines and meeting regulators- often these trips would allow for some sight seeing, such as visiting the Big Hole in Kimberly and going underground in a coal mine.

As a mining lawyer I felt like I was doing something important by contributing to the development of communities. I got my first glimpse into politics in the wave of Marikana, investigating unsafe working conditions, developing environmental plans for rehabilitating mine property, working with corporate executives to understand their strategy and the adrenalin of speeding down the N1 from Joburg to Pretoria to meet arbitrary regulator deadlines for various submissions.

I loved the centrality of the role and how each matter brought new challenges.

Each client had a different problem and the partner I worked for gave us free rein on matters. This built my professional confidence to execute and communicate as a professional. Although she would manage the relationship with the client, I would send the emails, they clients would call me if they had questions, etc. My criticism of the team was that it was too familial for a work environment and we could have used more intelligent tools to track matters, create reports and be efficient- which would have helped us to bill more. In 2013 the Black bubble was burst and the gang broke up.

Throughout my career I wanted to maintain that feeling of being connected to people, processes and policies while creating a product that’s profitable.

Going In-House

After Biglaw, I tried a couple of different things. I went in-house in an oil and gas company, where my boss lived in Durban and I was based in Joburg- so basically I have been remote since 2013. It was my first time working alone, after being accustomed to an office with 400 lawyers. I had to learn to trust my work, be thorough, do research and create my own support network of mentors. I was running legal and business affairs- so I would put together decks, find co-investors on projects and lead meetings after a short phone call with him. He was part of the young, new money Black elite that had made money from government contracts and had former President Jacob Zuma on speed dial. He opened my eyes to a whole class of Black, young, rich entrepreneurs that traveled to Bali on private jets. In those environments I quickly learned how political favor is volatile and qualifications to do the work are optional. At the time Zuma was ousted, a lot of them- including my boss- went broke.

Starting Out

I was 5 years into my career and had been disappointed by employers, so I made a bet on myself. I had some savings, worked out a rent free living situation and talked my varsity best friend into starting one of the first legal consulting firms in South Africa. I learned about finding clients, keeping clients, expanding revenue streams, business models, leadership, networking and expansion. We were so adorable when we started, see our launch video below.

I also launched Africa’s first lawyer on demand service. As a founder, I was able to find that feeling again, but I quickly realized that our service was too manual for scale in a way that mattered. Part of it was not knowing what tools we could use for a small services focused businesses and as I set my sights on moving away from a lifestyle business- I knew that technology would essential to our success. I was 8 years into my career at this point, running a good profitable company and contemplating the hard pivot to grad school in a foreign country, with a 6 figure price tag.

Starting Up

Ultimately I made the decision and attended Cornell with the vision of going back to my business then things changed. Instead, I become a founder- again- which I wrote about here.

While in school I thought of becoming a Product Manager, however it wasn’t presented to the law students as a career option, it was solely for Engineers and MBAs. Initially, I didn’t care because I didn’t understand most technical terms and I was just trying to keep up with my own course work. In January 2020, the blitz interview season was upon us, the technical students and MBAs were filling up their diaries so fast and law students were high key scrambling. I started to look at the PM job requirements and I was like “Hey, I know this stuff.. well some of it.” I went to the career services office like:

I have always been of the opinion that whatever an MBA graduate can do; a lawyer can do- just with a calculator.

I was benched very hard and told to stay in my lane- to look for roles in legal tech companies- maybe doing business development, or sales if I no longer wanted to practice law.

If the school didn’t see what I saw for myself, then I had to make it happen. All this was happening on the backdrop of a Coronavirus outbreak, BLM protests and many graduates being unable to find work. I half-heartedly applied for jobs, while I turned my full attention to a class project that had some real-world traction. When I went full time with Anü, I looked at this as an opportunity to do 2 things — either run a successful tech startup or have enough skills to rebrand myself as a PM. Either way I was setting myself up to win.

Next

My 5th pivot is loading as I am staring down another path. It’s less scary because I have learned how to get good at taking wild bets on myself adaptability. In contrast, my father has been a lawyer his entire life. He graduated from law school 32 years ago, each year he has renewed his practicing license and I honestly envy him for finding the thing he is good at, that he also enjoys. I enjoy certain aspects of the law, but not all the ways that it is practiced. I need room to experiment, to be playful and to also not always follow precedent. I am extremely blessed because my dad has supported these expeditions. Now it’s time for his investment to pay off.

5 Tips on Making Career Pivots

  1. Create A Big Vision for Your Life.
  2. Be Intentional About Skills To Acquire.
  3. Know Your Core Competency.
  4. Network Like Crazy.
  5. Community (I created The Legal Werk for mid-career legal professionals who want to make a pivot, switch, climb or reset their careers to have a source of support.) If you want to join us sign up for updates here.
  6. Know Your Tolerance for Pain.
  7. Have Faith.

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