South African law: Fiduciary duties of employees

Ramsay Webber Law

RamWeb Facebook Profile PicThe case of Phillips v Fieldstone Africa (Pty) Ltd and another 2004(3) SA 465 (SCA) dealt with the fiduciary duties of employees in relation to their employer, in cases where the employee is not a director of the employer.  It is important to note that the fiduciary duties of directors also extends to non-directors.

The main issue in this case concerned the liability of an employee to account to his employer for secret profits made by the employee out of an opportunity arising in the course of his employment.

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What is a spoliation? A relic of Roman canon law, alive and well in SA in 2013

Legal tips and updates by Rose Attorneys, Cape Town www.roseattorneys.co.za

A spoliation is any wrongful deprivation of another’s right of possession. It can include various acts, such as when a thief steals your car, or a landlord owed arrear rentals switches off the water supply to a tenant’s premises, or a municipal employee demolishes a homeless person’s home under a bridge.

The “mandament van spolie” is an order of court which undoes a spoliation, by ordering the guilty party to restore the status quo after a spoliation, that is, to return the thing that was spoliated. The underlying principle is that people are required to follow due legal process, and not simply help themselves. A party who skips due process can find themselves liable under a mandament van spolie to undo their actions and also pay their victim’s legal costs (aside from any other civil or criminal penalties that might apply).

There is conflicting case law as to whether the…

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