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Articles – BLC Attorneys | Port Elizabeth


Appointment of an administrator in terms of section 60 of the Mental Health Care Act, 17 of 2002

The provisions of the Mental Health Care Act, 17 of 2002 (“MHCA”) provide that the Master of the High Court may appoint an administrator to manage the property of any person who is diagnosed as mentally ill or who has a severe or profound disability (such that he is unable to manage his/her own affairs).

An application for the appointment of an administrator in terms of the MHCA dispenses with the need to proceed with a common law application to court for the appointment of a curator bonis. It is one of the requirements for an appointment of an administrator in terms of the MHCA that a patient’s assets must not exceed R 200 000.00 in value.

Due to there being no need for any High Court application in respect of the appointment of an administrator in certain circumstances, this procedure is naturally far less costly than the common law application to court for the appointment of a curator bonis.

The procedure and requirements of an application for an administrator is set out as follows:

i. The application can be made by any person over the age of 18 years.

ii. The patient must be diagnosed (and the application accompanied by the relevant medical certificate by at least two independent medical and/or mental health practitioners) with a mental illness or a severe or profound disability.

iii. The applicant must submit his application in writing, under oath or solemn affirmation, and must:

  1. Set out the relationship of the applicant to the patient;
  2. If the applicant is not the spouse or next-of-kin of the patient, give reasons as to why the application is not being made by the foregoing;
  3. Describe the steps taken to establish the whereabouts of the next-of-kin before making the application, if neither the spouse nor the next-of-kin are available to make the application themselves;
  4. Be accompanied by all available (at least two independent) mental health-related medical certificates or reports relevant to the mental health status of the patient;
  5. State that, within seven days immediately before submitting the application, the applicant had in fact seen the patient;
  6. State the estimated property value and annual income of the patient (inventory); and
  7. Provide particulars and contact details of anyone who may provide further information relating to patient’s mental status.

iv. The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.

Once appointed, the powers and responsibilities of an administrator are essentially to administer the estate of the patient, including the following:

  • To receive, take care of, control and administer all the assets of the patient.
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking of the patient.
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate of the patient.
  • To apply any money for the maintenance, support or towards the benefit of the patient, and to invest or re-invest any funds.

The exercise of the powers vesting in the administrator are subject to the prior consent and approval of the Master of the High Court.

Author: Tembelani Vabaza

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Expungement of a criminal record

Criminal records have always been a matter of public record, but developments in technology has made it easier for potential employers, landlords, lenders and any other interested party to access a person’s criminal and credit records. Most employers do not devote time to manually check criminal records, but with technology this can now be done with the stroke of a keyboard.

Do not let your past stand in the way of your future! Do you have a criminal record for a minor conviction? A criminal record could have a lasting hindering effect on a person’s life and can prevent them from gaining meaningful employment, from getting a visa or from emigrating. These are but a few of the implications that a criminal record can have on a person.

A person can apply to have a criminal record expunged. Expungement of a criminal record is a process by which a criminal record of a convicted offender is removed from the criminal record database of the Criminal Record Centre of the South African Police Service. Application is made to the Department of Justice in terms of the Criminal Procedure Act, 51 of 1977 (“the Act”), to the Director General to have the record removed.

Application can be made in the following circumstances:

  • A period of 10 (ten) years have passed after the date of the conviction for the offence;
  • A person was not convicted and sentenced to a period of imprisonment without the option of a fine during these 10 (ten) years;
  • The sentence was corporal punishment;
  • The sentence was postponed or the person was cautioned and discharged;
  • The sentence was a fine not exceeding R 20 000.00;
  • The sentence was imprisonment with the option to pay a fine (not more than R 20 000.00) instead of serving the period of imprisonment;
  • The sentence was imprisonment in terms of section 276(1)(i) of the Act (this section provides for an offender to be placed on correctional supervision, in the discretion of the Correctional Supervision and Parole Review Board (previously the Commissioner), on expiry of one sixth of the sentence);
  • The sentence was periodical imprisonment in terms of section 276(1)(c) of the Act;
  • Proof is provided that the person’s name has been removed from the National Register of Sex Offenders or National Child Protection Register, if relevant; and
  • The person’s conviction is based on their race.

If the conviction meets the above criteria, the entire criminal record can be expunged.

The following offences are excluded:

  • Crimes where a jail sentence has been imposed and no suspended sentence granted;
  • Crimes involving the elements of violence and sex;
  • Murder;
  • Assault with the intention to do grievous bodily harm;
  • Rape; and
  • Armed robbery.

Procedure to follow:

A Police Clearance Certificate showing an interval of 10 (ten) years between the conviction and the sentence must be obtained. This serves to confirm the details and date of the offence to determine whether a person qualifies to have their criminal record expunged. This can be obtained from your local police station. Thereafter, the application for expungement of a criminal record must be completed and sent to the Director General: Justice and Constitutional Development for consideration. The application form can be obtained from the website of the Department of Justice. If the Director General is satisfied that a person meets the requirements set out above, the Director General will issue a certificate of expungement, directing that a person’s conviction and sentence be expunged. The certificate of expungement will then be issued to the Criminal Record Centre of the South African Police.

The entire process of expungement usually takes about 20 (twenty) to 28 (twenty-eight) weeks.

Do not delay, let us bring your application today!

Author: Sonja Tifloen

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What is a Notarial Tie Agreement?

As the name suggests, a Notarial Tie Agreement (“Tie Agreement”) is an agreement executed by at least two parties where a condition is registered against the title deeds of two or more properties preventing the properties being sold, mortgaged, or independently dealt with. The idea is for the properties to be seen for all intents and purposes as one property.

It is usually entered into between the owner of pieces of land and the enforcer of the right. The “enforcer” is usually the person or entity who does not wish the properties to be separately dealt and requires the properties to be dealt with as one (often a lending financial institution or a local authority).

Another way of achieving this is by consolidating the properties but this is more expensive and takes longer as you would require a surveyor to prepare and obtain Surveyor General approval of a consolidated diagram.

How is a Tie Agreement formalised?

The parties to the agreement appear before a Notary Public and sign a Tie Agreement which is registered at the Deeds Office in terms of Section 65 of the Deeds Registries Act, 47 of 1937 (“the DRA”), which regulates the registration of Personal Servitudes. The title deeds must be lodged at the Deeds Office so that they can be endorsed to reflect the Tie Agreement and any bondholder’s consents to the Tie Agreement.

Section 65 of the DRA provides that the Tie Agreement will be registered free of any bonds so one would need to be cautious and ensure that bondholders rights are protected. Hereunder is the typical wording of a Tie Agreement:

The owner of the within metaproperties agrees that the properties shall be tied together and regarded as one property for all intents and purposes and may not be sold or mortgaged separately of each other without the consent of X first being obtained.”

What are the benefits of a Tie Agreement as opposed to a consolidation?

  • Generally speaking, it is a much quicker and more cost-effective process;
  • The properties being tied do not need to be owned by the same entity or person;
  • The properties do not have to be situated next to each other (contiguous) and can even be situated in different Deeds Registries;
  • No amendment is required to be made to existing registered bonds;
  • A Tie Agreement is generally acceptable to local authorities when a developer of adjoining properties does not have sufficient parking space for the proposed development; and
  • The second property can be tied to the property being developed to provide this additional space.

The following criteria make a consolidation less flexible than a Tie Agreement:

  • The properties must be contiguous to each other;
  • They must be owned by the same person or entity; and
  • If the properties are mortgaged, the bondholder has to give consent to the consolidation and consent to the consolidated property (new erf number) being substituted in the bond at an additional cost.

Author: Peter Bowes

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The Eastern Cape Liquor Act, 10 of 2003, (“ECLA”) applies to the province of the Eastern Cape and regulates the retail sale of liquor to persons over the age of 18 (eighteen) years by a registered person in respect of a registered premises.

No person shall sell liquor unless that person is registered in terms of the ECLA to sell liquor from a registered premises. A person includes a natural person (a human being), any divisional council, municipal council, village management board or like authority or any company incorporated or registered as such any under law or any body of persons corporate or unincorporated, as defined in the Interpretation Act, 33 of 1957.

Simply put, if you are the owner of a business that sells liquor from a premises, you must register as a retailer in terms of the ECLA in order for the Eastern Cape Liquor Board (“ECLB”) to issue you with a Certificate of Registration which will entitle your business to sell liquor from a registered premises to the public.

The ECLA recognises different categories of registration for purposes of selling liquor to the public. An application may be made via BLC Attorneys to the ECLB in respect of the following categories of registration:

  1. The retail sale of liquor for consumption on the premises where liquor is being sold;
  2. The retail sale of liquor for consumption off the premises where liquor is being sold;
  3. The retail sale and consumption of liquor on and off the premises where liquor is being sold;
  4. The retail sale and consumption of liquor at a special event; or
  5. Micro-manufacturing.

For example, if you own a restaurant that wishes to sell liquor to the public, the most appropriate category of registration will be an application to sell liquor for consumption on the registered premises where liquor is being sold. This restricts the consumption of liquor to the registered premises. The public will therefore not be allowed to purchase liquor from the registered premises and consume liquor off the registered premises. 

On the other hand, should you wish to operate a liquor store, the most appropriate category of registration will be an application to sell liquor for consumption off the registered premises where liquor is being sold. This restricts the consumption of liquor off the registered premises and no consumption of liquor may take place on the registered premises.  

Should you own a tavern (a “shebeen”), the most appropriate category of registration will be an application to sell liquor for consumption on and off the registered premises where liquor is being sold. An on and off consumption registration will be granted by the ECLB to persons that sell liquor should they be able to motivate why this particular category of registration should apply to them, as opposed to either an on or off consumption registration.

A special events category of registration will apply in instances where liquor is intended to be sold at a specific event for a specified duration of time. This category of registration is not permanent and only lasts for as long as the duration of the particular event.

A micro-manufacturing category of registration applies to persons who do not wish to sell liquor in respect of the categories outlined above but who wish to manufacture liquor from a registered premises and sell liquor to other retailers registered as such in terms of the ECLA. A micro-manufacturer of liquor is regarded as a person that manufactures liquor below the prescribed volume thresholds of liquor per annum. The prescribed annual thresholds are as follows: Beer – 100 million litres; Sorghum beer (traditional African beer) – 50 million litres; Wine – 4 million litres and Spirits – 2 million litres, respectively. A person must therefore manufacture liquor below the respective thresholds per annum to qualify to register with the ECLB as a micro-manufacturer of liquor.

BLC Attorneys offer a unique and specialised service in all aspects of liquor licencing, including the transfer of a liquor licence from one registered person to another registered person or from one registered person to a person who is not yet registered in terms of the ECLA to sell liquor to the public. It is imperative for a prospective applicant to also receive advice on other business compliance aspects outside of the application itself. Approach us today for a free quote for your prospective liquor licence application or transfer of liquor licence application.

Author: Blaine Saunders

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On 11 June 2020, the Minister of Sport, Arts, and Culture, Mr Nkosinathi Mthethwa, issued an Amended Direction and announced the opening of professional non-contact sport and the training of professional athletes as outlined in the Regulations to the Disaster Management Act, 57 of 2002 (“DMA”).

Mr Mthethwa directed non-contact Sport Bodies to submit their COVID-19 ready plan as per Annexure C of the Directions by 26 June 2020, indicating their state of readiness and the health protocols they will implement in accordance with the prescribed Regulations and Directions in terms of the DMA.

The strict prerequisites under Annexure C of the Directions include, amongst others, for the Sport Bodies to ensure that every single athlete and support staff is tested for COVID-19.

On 26 June 2020, Mr Mthethwa announced, in addition to the resumption of football activities, the approval for the resumption of training and matches, as the case may be, to bodies that have submitted their plans indicating their state of readiness. These Sport Bodies include the following:

  • Cricket South Africa;
  • South African Sport Anglers and Casting Confederation;
  • South African Gymnastics Federation;
  • Tennis South Africa;
  • South African National Climbing Federation;
  • Canoeing South Africa; and
  • Swimming South Africa.

The other non-contact Sport Bodies, such as Volleyball SA, Baseball SA, Rowing SA,  Jukskei, Table Tennis SA, and Badminton SA, are to remain suspended due to either not submitting their COVID-19 ready plans or due to their plans still being processed by the Department of Sport, Arts, and Culture.

It is important to note that certain professional non-contact Sport Bodies might have received an approval to resume activities post 26 June 2020. The Minister is yet to make a public announcement of such sports.

Certain contact sports are to be allowed for training only, and subject to new rules, which are yet to be published.

Gyms and fitness centres to remain closed

Further Amendments as gazetted in Gazette 43476 of 25 June 2020 by the Minister of Cooperative Governance and Traditional Affairs, provide for gyms and fitness centres, sports grounds and fields and swimming pools to remain closed, except for sports fields and swimming pools for training of professional athletes and non-contact sports matches.

The Regulations do, however, allow for individuals to exercise in small groups of three, between the hours of 06:00 to 18:00.

The relaxation of gym and fitness centre Regulations are expected to occur under Alert Level 2.

Author: Monique Botha

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Road accidents are a common occurrence in our society, and it may be very confusing as to how to go about instituting a claim against the Road Accident Fund (“RAF”). The information below is a guideline in determining whether you may be entitled to institute a claim against the RAF, and to provide you with some guidance on starting this often tricky and complex process.

It is important to note that there are prescribed time limits in which to lodge your claim in order for the claim to be a valid claim. If it is an identified claim, meaning that the person who is at fault’s details is known, the claim must be lodged with the RAF within three (3) years from date of the accident. If it is an unidentified claim, where the identity of the person at fault’s details are unknown, the claim must be lodged with the RAF within two (2) years from the date of the accident.

A claim can only be instituted against the RAF if the damages suffered were caused as a result of the negligent driving of a motor vehicle. If this is in the affirmative, it then needs to be established whether or not you are entitled to a claim against the RAF.

The following people are entitled to claim from the RAF:

  1. Persons who have sustained personal injuries in a motor vehicle accident, whether as a pedestrian, a passenger or a driver (unless such driver was the sole cause of the accident);
  2. A dependent of a deceased breadwinner (unless the deceased breadwinner was the sole cause of the accident); and
  3. Persons who paid for a funeral of a deceased who passed away as a result of a motor vehicle accident.

Once you fall within the categories above, there are prescribed claim forms that need to be submitted. These prescribed forms need to be accompanied by various other supporting documentation, amongst others, a certified copy of an identity document and an affidavit setting out the details of the accident and hospital records.

It should be noted that persons under the age of 18 years must be assisted by a parent or legal guardian in instituting their claim against the RAF. If you are unsure of the process to be followed and require further information pertaining to your personal situation, it is advisable to contact a legal representative.  

Should you obtain the assistance of a legal representative, you will need to provide them with a special power of attorney to handle your claim on your behalf as well as an authority to inspect your medical records.

Author: Sonja Tifloen

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With the current prescribed interest rate being 8.75%, the lowest it has been in the last decade, obtaining credit from a financial institution is more affordable than it has been for many years. An application for credit could however be frustrated if a judgement has been recorded against your name by a court order and registered at the credit bureau without you having any knowledge of these events. This can and does happen frequently. A common cause is as a result of a summons being served on an address where the debtor no longer resides.   

A default judgment is attached and registered against your name when a court finds that you are liable for a debt or if you have failed to act in accordance with the Uniform Rules of Court. South African law allows you to approach a court, on application, to rescind the judgment (set it aside) against you. Typically, default judgement for payment of debt will be granted against you if you have failed to appear at court and prove to the Magistrate that you do not owe the money for whatever reason.

It is necessary to know the procedure to follow to rescind the default judgement. You are entitled, in terms of Rule 49(1) of the Magistrate’s Court Rules, to serve and file an application at court within 20 days after obtaining knowledge of the judgment, and on notice to all parties to the proceedings, for a rescission or variation of the judgment and the court may, upon good cause shown, or if it is satisfied that there is good reason to do so, rescind or vary the judgment on such terms it deems fit. This application must be supported by an affidavit setting out the reasons for the party’s absence or default and the grounds of the party’s defence to the claim. The court will be reluctant to rescind a judgment if it is found that the party was aware of the legal action against him or if the default was due to his own negligence.

There are three grounds on which one may apply for rescission of a judgment in the Magistrate’s Court:

  1. If you have valid defence to the claim that you did not raise, as a result of having no knowledge to the legal action;
  2. If the judgment debt has been fulfilled within a reasonable time of having knowledge of the judgment; or
  3. If the party who obtained judgment against you (judgment creditor) consents to the rescission.

In respect of judgments which were obtained in the High Court, the position prior to 11 March 2019 was that you had to prove good cause to apply for a rescission of judgment. This meant that you were required to prove that you have a reasonable explanation for the default, that the application is brought bona fide and not with the intention to delay the claim against you and that you have a bona fide defence.

Thankfully, the position has changed since 11 March 2019 in that you are entitled to bring an application for rescission of judgment in the High Court without having to show good cause. Once the court has rescinded the judgment, the credit bureau needs to be informed thereof in order for them to update their records. 

Please note that this article has been generated to serve as a general information sheet and should not be used or relied on as legal advice. Each case is dealt with on a case by case basis and you should always contact your legal adviser for specific and detailed advice on your particular matter.

Author: Delia Chamberlain

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Protection of Personal Information Act 4 of 2013 (“POPIA”)

On the 1st of July 2020 all but two of the remaining sections of the Protection of Personal Information Act, 4 of 2013 (‘’POPIA’’) come into effect.

The 1st of July 2020 is an extremely important date in the history of POPIA which was first enacted in 2013. From the above date all entities, both private and public, have twelve months within which to ensure compliance with the Act. The twelve-month grace period expires on 1 July 2021.

POPIA is an extensive piece of privacy legislation aimed at protecting against the unlawful collection, retention, dissemination and use of personal information. The intention of POPIA is to ensure that South Africa’s constitutionally enshrined right to privacy is safe guarded. Penalties for non-compliance are severe, with administrative fines of up to R 10 million, imprisonment, penalties, civil damages and most importantly, reputational harm.

POPIA has a wide scope and most private and public bodies will have to comply. Where these entities are not based within the borders of South Africa, but processes personal information within South Africa, they will be subjected to provisions of POPIA. This includes sole traders, partnerships, trusts, small and medium-sized enterprises (SMEs), large corporations, government entities, foreign companies, and anything else in between.

The definition of “personal information” is similarly expansive, and includes a person’s identity number, email address, phone number, marital status, biometrics, employment history, banking information, health-related information, data related to their economic status, personal views and private correspondence – even online identifiers such as IP addresses and cookies are deemed personally identifiable information. POPIA goes a step further than most data protection legislation, in that it includes juristic persons under the definition of data subjects.

South African businesses are recommended to start preparing for compliance early on, as the changes within the business of this magnitude and the integration of the principles of data protection into business processes will take time.


  • The role of the information officer is most crucial. For a private company, the CEO will be the information officer, or a person duly authorised by the CEO for that purpose. The POPIA regulations extend the information officer’s duties and impose certain mandatory responsibilities.
  • The next step is to secure the necessary buy-in from the organisation and to assign responsibility for ensuring POPIA compliance. Thereafter, each business unit/department may start with personal information audits to determine the personal information processed by the business, how it is collected, processed, stored, and destroyed and whether the necessary consent has been obtained.
  • This level of visibility, early on, will put organisations in a much better position to perform proper gap analysis and prioritise those areas most at risk. Existing policies can be updated and, where necessary, new policies created and implemented to address the actual compliance gaps identified during gap analysis. These may well include updates to employment or supplier contracts, supplier on-boarding processes, marketing policies, consent wording, record retention policies, subject access request policies, and data protection policies.
  • Organisations will also be required to develop, monitor, and maintain a manual as prescribed in sections 14 and 51 of the Promotion of Access to Information Act, 2 of 2000 (“PAIA”) (which must be made available to any person upon request). In addition, organisations will be required to secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent: (a) loss of, damage to or unauthorised destruction of personal information; and (b) unlawful access to or processing of personal information.
  • The information officer is to ensure that the compliance framework is implemented, monitored, and maintained throughout the organisation. The final step to compliance would be to ensure the proper socialisation and implementation of systems, policies and procedures through training, internal awareness sessions, annual re-training, and compliance audits.

Author: Lyalle Windvogel

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This article seeks to provide a brief update on an article published on our Facebook page and our website on 1 July 2020 concerning domestic passenger flights.

The Port Elizabeth International Airport will reopen today (1 July 2020) for business travel together with Upington and Bloemfontein airports, as announced by the Cabinet member responsible for transport, Mr Fikile Mbalula, on 29 June 2020. These airports join the ranks of Cape Town International Airport, King Shaka International Airport, OR Tambo International Airport and Lanseria Airport which reopened on 1 June 2020, subject to the conditions discussed in my previous article: “”.

It is important to note that all restrictions and control measures that were put in place on 1 June 2020 continue to apply and must be adhered to from the 1 July 2020 when the above airports reopen. The  Airports Company South Africa’s spokesperson, Gopolang Peme, has advised that all required measures will be in place by 1 July 2020 and that passengers should visit the airports company website ( to establish which access points to airport entrances will be open.

Passengers must continue to produce their business travel authorisation letters at a security check point together with a paper copy or electronic copy of their boarding passes. Masks must continue to be worn on arrival at each respective airport, for the duration of each flight, and out of the airport concerned.

Author: Blaine Saunders

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Affirmative Action: Ten lessons learnt from recent case law

The Employment Equity Act, 55 of 1998, (“EEA”) was set up to achieve equality in the work environment through the disposal of unfair discrimination and the usage of governmental policy (affirmative action measures) regarding minorities in society measures.

Recent case law has gone back and forth under the steady gaze of the courts, where the use of the EEA has been analysed. Examination of a portion of the main case law has highlighted ten prominent standards for employers to bear in mind at the top of the priority list when advertising/marketing new opportunities:

  1. An employer is legitimately entitled to place reliance on the race, gender and/or disability of an applicant during the recruitment process in deciding whether or not to appoint the applicant. This does not amount to racial discrimination and is consistent with section 6(2) of the EEA, which permits employers to take affirmative action measures consistent with the purpose of the EEA.
  2. Employers are required to prepare and submit employment equity plans which must, amongst other things, detail recruitment targets and the strategies intended to achieve those targets. The employer must stick to the plan as far as reasonably possible during the recruitment process. The plan cannot be applied haphazardly or inconsistently.
  3. When advertising positions, an employer is at liberty to indicate that preference will be given to affirmative action candidates or designated groups. The advertisement should not, however, outright exclude non-designated groups from applying for the position. For example, if an employer advertises a position by stating “only affirmative action candidates will be considered for the position”, this may constitute unfair discrimination as it constitutes an absolute barrier to non-affirmative action candidates.
  4. Once equity targets have been recorded, further appointments should be strictly assessed on merit.
  5. Where a court is tasked with determining the employment equity status of a designated employee versus a non-designated employee, the court will consider the dynamics of the relevant group as a whole and not the individual circumstances of the employee in question. In other words, the court will look past comparative inequalities within a particular group.
  6. Whether or not discrimination has taken place is an objective test. Accordingly, the court will not have regard to any defence based on an employer’s subjective intention not to discriminate.
  7. An applicant for employment may not rely on unfair discrimination where such an applicant is not, first and foremost, suitably qualified for the position in question.
  8. Employers may not hide behind the defence of having a collective agreement in place, where those provisions are discriminatory in nature. The mere fact that a discriminatory practice is codified in a collective agreement will not serve as a defence to an unfair discrimination claim.
  9. Diversity of interview panels is essential when making new appointments.

There are many progressively significant standards which employers must remember while actualising their commitments under the EEA. Employers are encouraged to reliably be watchful for conceivable oppressive practices and obstructions to governmental policy regarding minorities in society in the working environment. Where employers identify such practices, they should take active steps to eliminate or amend these practices.

Author: Lyalle Windvogel

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