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1-Editor's-Letter

Editor’s Letter

“You got to try and reach for the stars or try and achieve the unreachable.” - Cathy Freeman.

May 2017 be the year that you FINALLY achieve and sustain your 2014 new year’s resolutions.

We will ensure that at least your legal new year’s resolutions will be taken care of. The rest is up to you…make it happen!

We look forward to helping you achieve the unreachable in 2017!

Enjoy the read!
JJR Inc. team

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As a society, concerned with our environment, many individuals and companies have turned away from the conventional hard copy and relies on paperless offices. Gone are the days of the cluttered office/room with documents strewn over the floor.

But at what cost? Well… we are all too often guilty of over relying on a person’s word. Think of your day to day relationships with business partners, family, friends, employees et cetera. We are far too often blasé with the actual consequences of these relationships and their attached arrangements. How often have you thought that next time you would do this all different and protect both yourself and your interests? Yet, fast forward… we just prove that we are creatures of habit falling into the same trap.

We are all victim to the present illusion believing that the future will be as it is currently. So why fix what isn’t broken? Because, when it finally breaks, the consequences and strains on our relationships and our being is astronomical, possibly resulting in divorces, separations, a summons, a CCMA case, insolvency or mismanagements of your affairs.

Let 2017 be the year for change, let 2017 be the year where you do basic personal house-keeping. Do not rely on a person’s word but rather get the necessary legal assistance and reduce your arrangements into writing. This is to the benefit of not only you but your business partner, your significant other or your beneficiaries.

Here is a list of legal New Year’s resolutions our offices can make happen for you:

• Create a will;
• If you work in partnership with a partner or are shareholders with others in a company have a partnership or shareholders’ agreement drafted;
• If you live with an individual create a cohabitation agreement;
• If you sell goods or services issue some standard conditions of sale and purchase to protect your legal position;
• Make long term informal important business relationships into written agreements to provide better protection;
• Ensure all your employees have written contracts, including your domestic worker;
• Register trademarks or patents of any important intellectual property you use in your business;
• Update your standard contracts’ terms and your company policy;
• Check your compliance with various areas of the law; and
• Have your website checked for legal compliance.

Contact our offices to get your personal and family affairs for 2017 and the future in order.

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December for many is synonymous with a time to unwind and rest after a very busy year. We enjoy the well-deserved holidays in order to be ready to seize the year in January. Many employees, however, return after the holiday not feeling refreshed and the New Year seems to be an uphill battle. Perhaps the holiday was just too short?

In South Africa the Basic Conditions of Employment Act provides the statutory framework for annual leave and according to the Act, companies must ensure that all (full-time) employees have at least 21 calendar days (15 working days) of annual leave in every annual cycle. Of the various countries, the United States of America is the only country that does not mandate paid leave. In Europe, countries such as Germany and Netherlands provide 20 paid annual leave days for full-time workers, whereas Denmark and France strongly believe in a work-life balance with 25 paid annual leave days. Australia provides their workforce with 20 leave days, whereas in the United Kingdom full-time workers are allowed 28 days annual leave. A report by Centre for Economic and Policy Research in the United States confirms that most advanced countries oblige employees to take far more leave than South Africa does.1

According to the South African Employee Benefits survey (2013) the average leave granted by employers are as follows:

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In the study, "An Assessment of Paid Time Off in the U.S." (commissioned by the U.S. Travel Association, a trade group, and completed by Oxford Economics) it was found that some of the benefits of taking leave or time-off from work included higher productivity, stronger workplace morale, greater employee retention, and significant health benefits. Ensuring that employees take annual leave, enable them to cope better with stress and manage their responsibilities more efficiently after being refreshed and re-energised. A rested mind and body boosts productivity and creativity. Shawn Achor in his book, The Happiness Advantage, states that, "the greatest competitive advantage in the modern economy is a positive and engaged brain." To be truly engaged, your brain needs a break.

In light of the comparison with various other countries and the report by the Centre for Economic and Policy Research in the United States, South Africa should consider revisiting their statutory framework. Given that the average leave days is greater than the required minimum it is apparent that many employers have recognised this and the importance of leave and a well-rested employee. Let’s make 2017 a productive year by ensuring your employees receive the rest they need during the year and revise your contract of employment.

 

1 http://cepr.org/content/reports.

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A New Year's resolution is a tradition in which a person makes a promise to do an act of self-improvement or something slightly nice, such as opening doors for people beginning from New Year's Day.

Some people however tend to make resolutions which are unrealistic or unachievable at that specific point in time like buying a house without weighing up the pros and cons thereof.

Buying a house is likely the single largest investment you'll make, and the right one could be your “happy home” for many years to come, but unfortunately buyers’ remorse is a reality and some people tend to choose homes that really don’t suit them.

In order to make sure your resolution of buying a house falls within the parameters of reasonableness and affordability we have set up an easy 5 step plan to follow in order to find and buy your dream home:

1. Determine your basic needs in a home
Make a list of your basic needs and then your personal “must-haves” and “nice-to-haves” in a home. A must have is for instance 2 bedrooms, where as a nice to have is an extra Wendy flat.

2. Determine what makes your current home appealing
Look around your current home and note the things that you like most about it, even if it is a rental property, and also note the things that don’t appeal to you. This will give you a good idea of what works for you and what you need to consider when you look at homes for sale. Rather be as honest and detailed as you can about what you want, because this will really help you find the right “match”.

3. Family input gives a beneficial output
If you have a family, spend time with them and discuss what’s most important to each person when compiling your house-hunting master list. This will give you a much better chance of finding a home that everyone likes, and you can all settle down comfortably for many years.

4. Planning ahead is key
Plan well ahead so you don’t have to buy in a rush just to have somewhere to live. This is especially important if you are moving in with another person for the first time, or moving your family to another area or town.

5. Research and groundwork prevents you from being a dull boy
Finally, be ready to commit. Seek advice from a reputable mortgage originator to make sure you have your finances in order and can qualify for a home loan before you start your search for the right home. It will give your confidence a big boost to know that when you find it, you can immediately make an offer and start the process of becoming a happy, long-term homeowner.

Once you have found your dream home, JJR Incorporated will be glad to assist you in making your resolution come true. Our exemplary services in conveyancing will help you to finalize the transfer and registration of your dream property to your name in a convenient and affordable fashion.

 

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This newsletter 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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1-Editor's-Letter

Dear Reader

Thank you for facing this year with us.
Thank you for rising above and beyond.
Thank you for standing up for yourself.
Thank you for staying positive, despite the hardships that 2016 had to offer.

Thank you for being part of our family.

Enjoy the well-deserved holiday and do something for yourself this festive season.
You deserve it.

Merry Christmas and a Happy New Year to you and your family.
The JJR Inc. Team

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After a long, difficult and exhausting 2016, everyone needs a well-deserved Christmas break, or at least the public holidays that goes hand in hand with it. This creates confusion due to the conflict of interest that exists between the needs of the employer and the employee. Should the employee abandon his beliefs and continue his employment throughout the festive season, or can he make his objection known in this regard? On the other side, under which circumstances and conditions may an employer expect an employee to continue working?

The Basic Conditions of Employment Act1 states that an employer may not require an employee to work on a public holiday except in accordance with an agreement.2 Due to this section, some employers elect to include a clause in their employment contracts / leave policies with their employees, which states that the public holidays (or at least some of it) are construed as normal working days.3 In all fairness, one cannot blame an employer for this mind-set, as employers in the retail sector for example, may lose substantial benefits on public holidays like Easter and Christmas.

Therefore an employee may refuse to work on public holidays, as long as there exists no employment contract or leave policy stating the contrary. However, can a refusal lead to disciplinary action? The Constitution of South Africa prohibits discrimination based on religion.4 Section 6(1) of the Employment Equity Act5 confirms the principles in regard to unfair discrimination on the basis of religion. Section 6(4) of the Employment Equity Act further reiterates the prohibition by stating that any difference in the terms and conditions between different employees on the basis of any of the grounds listed in subsection 1 would be construed as unfair discrimination.

In this regard, it seems as if the well known labour law principle of fairness would apply in this instance, as the employer will have to be consistent in its actions towards its employees, as well as the protection of their beliefs. The failure of an employer to adhere to and protect the aforementioned rights and beliefs may be to the employer’s detriment.

What happens when an employee does not celebrate Christian Public Holidays? In this case the Public Holidays Act6 states that "any public holiday shall be exchangeable for any other day which is fixed by agreement or agreed to between an employer and employee". Therefore, an employee who does not wish to take a certain public holiday would have the right to request paid leave on another day, as agreed upon by the parties.7

Remuneration payable on public holidays

What does the law say about remuneration for working on a public holiday? Section 18(2)(b) of the Basic Conditions of Employment Act states that employees are entitled to double their normal daily remuneration, or if it is greater, their normal daily wage plus the amount earned by the employee for the time worked on the day.

If the employee however reaps the benefits of a well-deserved and soothing day at home, an employer is expected to pay the employee the wage that the employee would normally receive for work on that day.8

The end of Religious Holidays?

The South African Law Reform Commission's most recent proposal moves for a removal of Good Friday and Christmas as public holidays on the South African Calendar,9 as the continuous existence thereof favours only one religion. This may lead to the revision of the aforementioned Public Holiday Act, and finally the elimination of the religious aspects of public holidays.

 

1 75 of 1997

2 Section 18(1) of the basic conditions of employment act 75 of 1997

3 Labour guide http://www.labourguide.co.za/conditions-of-employment/565-religious-holidays (visited on 14 November 2016)

4 Labour guide Section 9(2) of the Constitution of the Republic of South Africa, 1996

5 55 of 1998

6 36 of 1994

7 FOR SA http://forsa.org.za/good-friday-and-christmas-under-threat/ (visited on 15 November 2016)

8 Section 18(2)(a) of the Basic Conditions of Employment Act 11 of 2002

8 FOR SA http://forsa.org.za/good-friday-and-christmas-under-threat/ (visited on 15 November 2016)

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It has happened to all of us. While cruising along, on your way to the coast, you forget to keep an eye on the speedometer and as Sir Murphy would have it, traffic court is your next destination.

This article summarizes the requirement, as found in the Technical Committee for Standards and Procedures Guidelines, for a valid speed fine by looking at each type of camera used in South-Africa.

Fixed Speed Camera

These cameras are permanently mounted next to the road, after their use was legalized in December 2012. The camera is triggered by either a strip on the surface of the road or by the use of electromagnetic induction.

In either case the fine must reflect the date and time of the offence, speed measured and the location of the infringement.

Furthermore, it should be noted that special written permission from the Department of Public Prosecution is required if the traffic authority does not intend on immediately stopping and charging the alleged offender. The traffic authority must at all times have in their possession and be able to provide a calibration certificate for the equipment used, an operator’s certificate and an appointment certificate, to any person requesting such documents.

Cameras using portable radar

A Doppler effect is used in these cameras to determine the speed of a motor vehicle by sending a microwave towards the car and measuring the time the wave takes to return to the receiver.

During operation of the camera system the operator may not touch or move the speed trap. The ticket issued would not be valid should any metal sign or vertical flat surface larger than one meter in vertical height be present within 100 meters of the 15 degree aiming direction. A ticket will also be invalid should there be any high-voltage overhead power cables within 100 meters of the radar field.

Cameras using portable LIDAR

These cameras use pulses to measure speed. The guidelines require that all measurements should be taken within 500 meters of the camera. The image, as seen through the gun, must be clear and include a separation between the target vehicle and any other vehicles. Should there be no photographic evidence of the alleged offence the charge sheet must state the distance between the camera and the target vehicle.

Cameras used for average speed prosecution

Automatic number plate recognition is triggered when a car passes through the starting point of the speed trap and again when the vehicle exits the assessment area. For these tickets to be valid two images, one of the vehicle entering the zone and the other of the vehicle’s exit, must be attached to the fine. Once again, the date and time of the alleged offence must be evident from the fine. Should the information of the ticket not match what is captured in the National Register of Vehicles, the fine will also be invalid.1

Conclusion

When considering the effort one would have to go through to get a ticket quashed, would it not be better to avoid them from the start? Many experts advise to drive with the cruise control function engaged, when driving long distances. Should your car not have this function, have your passengers help you keep an eye on the speedometer.

Most important of all: enjoy the journey, drive safely, cherish the time with family and return safely.

 

1 Vermeulen, J. Speed Camera Tech used in South Africa: What you should know. September 28, 2015 http://mybroadband.co.za/news/government/139616-speed-camera-tech-used-in-south-africa-what-you-should-know.html, Accessed on October 12, 2016; See also https://arrivealive.co.za/Prosecuting-Guidelines-for-Speed-Measuring-Equipment, Accessed on October 12, 2016.

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JJR Inc. Christmas Braai Recipe

Christmas with the family is almost like pre-organised chaos. To prohibit possible domestic violence we have decided to include a Christmas Braai recipe. Now dad can do the work while mom entertains the guests. Sounds like the perfect solution! Enjoy!

Butterflied Leg of Lamb on the Braai
By Cameron Ewart-Smith (Getaway Magazine)

This recipe serves six to eight.

Ingredients for the lamb

1.5 to 2 kg leg of lamb, butterflied (ask your butcher)
200 ml buttermilk
2 portions of Worldly rub
Oil

Ingredients for the Worldly rub

1 tbs ground cumin
1 tbs paprika
1 tsp onion flakes (you can use fresh onions too)
2 tbs dry rose petals (not essential)
1 tbs salt
1 tbs turmeric
2 tbs chilli flakes (leave out if you don’t like hot spicy food)
1 tbs tamarind paste (often difficult to find and not essential)
3 tbs fresh parsley, finely chopped (essential)
2 tbs pine-nuts, toasted and ground (could be substituted with cashews or macadamias)
½ teaspoon pepper

Worldly rub

Combine all the ingredients in a mixing bowl. You can refrigerate the rub in an airtight container for up to two weeks (it’s ideal to make at home before you leave).

Lamb

Mix the buttermilk and worldly rub to form a marinade for the lamb (for best results, rub directly into the meat before marinating). Ideally leave overnight, otherwise leave for at least three to four hours. Brush kettle grill with oil. Cook lamb over medium coals for 30 to 40 minutes depending on your preference. Remove and set aside for five to 10 minutes. Slice and serve.

 

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This newsletter 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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1-Editor's-Letter

Dear Men of the World

Have you started growing your trendsetting moustache? Or is your wife / partner still not too keen on the idea?

You can still support your fellow brothers by encouraging each other to go for a medical check-up before the Bokke take on Wales on a Saturday afternoon.

Stand together. We need you… to open our wine bottles, to remind us that we are complicated (and that it is okay), to mo(w) the lawn, and to tell us that we are the most beautiful creatures in the world (amongst other things).

Be a man. Stand up for men’s health. Before we start doing it for you and participate in No-Shave November. Not a threat, just a warning.

Sincerely,

Women (and admirers) of the World

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Is your once soothing view of the distant mountains now obscured by the three storied building rising up right in front of your two storied office or home?

A recent decision by the Supreme Court of Appeal -BSB International Link CC v Readam South Africa (Pty) Ltd (279/2015) [2016] ZASCA 58; [2016] 2 All SA 633 (SCA); 2016 (4) SA 83 (SCA) (13 April 2016) has paved a way for property owners or occupiers to take control of illegal building activities of neighbours.

BSB International Link CC (BSB) undertook building operations on their property of a new retail/ office building development. Readam South Africa (Readam) was the neighbouring property owners. Readam argued that BSB:

1. Undertook building activities without prior written approval of building plans by the City of Johannesburg Metropolitan Municipality as required in terms of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) and;

2. Building activities were also in contravention of the Sandton Town Planning Scheme.

The reason for Readam approaching the court for relief in its initial High Court application was due to the fact that the Municipality was uncooperative in enforcing its own building and zoning laws. Readam sought relief from the municipality but was unsuccessful. Therefore, they approached the High Court directly for a demolition order. The High Court found that BSB did not comply with zoning provisions and that the municipality had in fact cancelled its initial approval of building plans. The court found that building activities were unlawful as there was no initial approval of the building plans due to the fact that the available building plans contained the word “cancelled” on the manuscript with two transverse lines drawn across it. Based on this, the court ordered partial demolition of the building and compliance with zoning laws. BSB appealed the court order and sought relief that the partial demolition order had to be set aside.

BSB failed the appeal and the Supreme Court of Appeal ordered the following:

1. BSB clearly contravened zoning provisions with their building activities;

2. BSB argued that they did receive approval of their building plans. The appeal court found that said approval should rather be reviewed and set aside opposed to the finding of the High Court stating that there was no initial approval of building plans.

In terms of the Act, only a Minister or Municipality can approach the court for a demolition order. But this does not leave an individual, such as Readam without remedy. Therefore, when you as a neighbour, bring a demolition application, the court has a discretion to order demolition. Keep in mind that when bringing such an application as a neighbour, private- or neighbour law applies and the court is not obligated to grant a demolition order. In such an application, the court can also decide to reward damages for illegal building activities.

First prize will therefore always be for the municipality to do their job and bring an application for demolition where illegal building activities are taking place.

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Since the inception of the new Firearms Control Act No. 60 of 2000 (“the Act”) and commencement thereof in 2004, a lot has been said and changed from what every “gunslinger” in South Africa was used to. The main aim, pun intended, of the Act was to curb gun violence in our country with stricter control concerning the issuing of firearm licences, the ownership thereof and all related thereto. How successful that really was, might not be revealed nor observed from the reports in the news, but will not be delved into. Rather, here is what you require to know on renewing your firearm licences.

Only a few key areas to be aware of after the purchasing of a firearm, more specific, pertaining to the maintaining of the licence(s) itself, will be discussed.

The website of the South African Police Service, www.saps.gov.za, contains all the need-to-know information, inter alia, the legalities of the ownership of firearms, the application forms for new applications and renewals and the fees payable when applying.

Ownership is divided into 7 (seven) categories, in terms of the Act. Each of these categories also has a period of validity from the date of issue where after an application for renewal has to be submitted 90 days prior to the date of expiry. These categories are1:

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The purpose for the expiry and subsequent renewal is to ensure compliance with the provisions of the Act. This supports the notion of firearm and ammunition ownership being under better control and promotes responsible behaviour.2

The renewal application process relies on the following3:

1. The continuation of complying with the requirements for the licence in terms of the Act;
2. Application to be submitted at least 90 days prior to the expiry of the licence; and
3. A valid and relevant competency certificate.

The process entails the following, starting with applying for the renewal of a competency certificate:

• Completing a SAPS 517 (g) form (Application for renewal of a competency certificate)
• Submission of the application form with the following supporting documentation to the designated firearms officer (DFO) at the police station in the area where you normally reside: ✓ certified copy of your official identification document or passport ✓ certified copy of your permanent residence permit in case of a non- South African citizen ✓ certified copy of your current competency certificate which is to be renewed (front and back) ✓ two passport-size colour photographs (with a neutral background) that are not older than three months ✓ certified proof of residence ✓ two testimonials attesting your character with the signature of the deponent ✓ any other supporting documents


Then, for the renewal of the licence, take the following documentation to the DFO at the police station nearest to where you reside:

• your official identity document (certified copy of permanent residence for a non-South African citizen) • the original firearm licence, permit or authorisation for a firearm you wish to renew • two recent passport-size colour photographs, not older than three months • competency certificate • the SAPS 518(a) form with the relevant sections completed


The Designated Firearm Officer will:

• take a full set of your fingerprints on the SAPS 91(a) form (only for a competency certificate). • issue you with a remittance advice SAPS 523(a) and direct you to the financial office at the police station to pay the prescribed fee. The payment must be made by means of cash or a bank-guaranteed cheque. You will be issued with a receipt (Z263) as proof of payment, which you must submit to the DFO to ensure that the processing of the application will continue. You will receive a signed acknowledgement of receipt (SAPS 523) as proof that you have submitted an application for a renewal of a licence to possess a firearm. This proof will allow the current licence or permit to remain valid until the status of the application has been decided on.


The costs involved can be confirmed with the DFO at the nearest police station.

I had to reapply for my licence earlier this year and it was a fairly smooth process. Of course it took time to process, but I was kept up to date by text messages and received an e-mail to collect the renewal. I was quite surprised by the level of service I received, as I was not looking forward to undergo the strenuous application process.

Stay within the law and happy gunsling’in days will be sure-fire.

 

1 http://www.saps.gov.za/services/flash/firearms/faq_categories.php. Website visited 28 October 2016 at 09h40. (visited on 14 July 2016)

2 http://www.saps.gov.za/services/flash/firearms/faq_renewal.php. Website visited 28 October 2016 at 10h30.

3 http://www.saps.gov.za/services/flash/firearms/faq_renewal.php. Website visited 28 October 2016 at 10h45.

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What if you woke up this morning with a brilliant idea, one that could change the world as you know it, but alas, you do not know where to start or how to make it happen? Let us rephrase then… What if you woke up with a brilliant idea and you got into your car and drove to JJR Incorporated to set the ball rolling?

In an ever changing world it cannot be denied that ideas and inventions form part of our existence, but it is also true that only a few ideas ever get to see the light of day.

The only element that sets some ideas apart from the rest is the acknowledgement thereof. For an idea to be acknowledged it must be to the benefit of the community, it must be in public interest and it must improve current technology. You must also be sure of which category of intellectual property your idea falls into in order to get the best possible protection for your idea or invention.

There are 4 main categories that intellectual property branch into, namely patents, trademarks, designs and copyright.

What is a patent?

The CIPC defines a patent as:

An exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.

The patent provides protection for the owner, which gives him/her the right to exclude others from making, using, exercising, disposing of the invention, offering to dispose, or importing the invention. The protection is granted for a limited period of 20 years.

What is a Trade Mark?

The CIPC defines a trade mark as:

A trade mark is a brand name, a slogan or a logo. It identifies the services or goods of one person and distinguishes it from the goods and services of another.

A trade mark can only be protected as such and defended under the Trade Marks Act, 1993 (Act 194 of 1993) if it is registered. Unregistered trade marks may be defended in terms of common law. The registration procedure results in a registration certificate which has legal status, allowing the owner of the registered trade mark the exclusive right to use that mark. A registered trade mark can be protected forever, provided it is renewed every ten (10) years upon payment of the prescribed renewal fee.

What is a Design?

The CIPC defines a design as:

Essentially a "Design" is about shape and features that appeal to the eye.

Some designs are necessitated by function and others are aesthetic. Design is about the shape, form, pattern, ornamentation and configuration of a product or article for e.g. the design of a ring (jewelry) is generally dictated by aesthetic features.

There are 2 types of designs which can be registered, namely an aesthetic design or a functional design.

Protection is afforded to aesthetic designs for a period of 15 years, and to functional designs for a period 10 years.

Registered designs have to be renewed annually before the expiration of the third year, as from the date of lodgment.

What is Copyright?

The CIPC defines copyright as:

A copyright is an exclusive right granted by law for a limited period to an author, designer, etc. for his/her original work.

Unlike other forms of intellectual property, copyright does not need to be registered, except for cinematograph films.

The lifespan of copyright depends on the type of work protected:

• The copyright of literacy works lasts for 50 years after death of the author.
• The copyright of computer programs lasts for 50 years after the first copies were made available to the public.
• For sound recordings, the copyright lasts for 50 years from the day the work was first broadcast.
• For films, 50 years from the date the film was shown.

It is important that you effectively manage your idea or invention to ensure that you get the best protection and the most out of your idea or invention.

The creator of an idea or invention is not necessarily the owner - it is important that ownership is addressed through appropriate contractual arrangements. Let us help you to get the best possible protection.

 
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This newsletter 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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Dear Reader

As the purple of the Jacaranda trees grace us with October in Pretoria, we are also reminded of how little time is left of the year.

A lot has happened this year in South Africa and in Pretoria, the Capital City that we love.

May the changing of the season be the beacon for change in our hearts to embrace the possibility of achieving what we have been striving for, for many years.

Enjoy the read!

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2016… a major turning point in South Africa’s short democracy.  The elections turned out a major surprise where no single party was able to capture an outright majority in some of the country’s largest metros.  Coalitions were agreed upon and the City of Tshwane along with the other metros voted on their respective mayoral candidates.  But what exactly does this mean?

Those who are not familiar with politics were left scratching their heads with the announcement that the EFF would neither enter into a coalition with the ANC nor with the DA. Other smaller parties, such as the AIC and the IFP entered into formal coalitions with the ANC and the DA respectively.

On the outset a brief explanation on what a coalition entails is essential.  A coalition is an agreement between parties to join forces, generally based on a common political agenda. The agreement usually mutually benefits both parties, often voting particular persons into certain positions, and further assists minority parties in reaching a majority.  The parties are bound by their coalition agreements and these agreements make for a stable political situation.

The EFF’s decision not to form a coalition with any party within these hung councils resulted in the formation of minority governments for some of these metros. No more forcing through of by-laws, and budgets by parties exercising majority rule.  Each decision/issue would be debated, scrutinised and put to a vote.  This would create situational alliances depending on arrangements and trade-offs between the parties.

Section 30 of the Local Government: Municipal Structures Act, 117 of 1998, deals with quorums and decisions of councillors.  Section 30(2) states that concerning (i) the passing of by-laws; (ii) the approval of budgets; (iii) the imposition of rates and other taxes, levies and duties; and (iv) the raising of loans, a majority vote of all councillors is required.  A simple majority of councillors present at a meeting (complying with the necessary quorum) will not suffice to pass any of these measures.  All remaining measures may be passed with a simple majority present at a meeting complying with the necessary quorum.

In a perfect world, a minority government would be the epitome of a well working democracy.  With the social injustices faced by our country and the vast conflicting ideals of our political parties the question arises whether South Africa and its capital, would be mature enough to agree on most issues.  

If the relationship between parties breaks down and councils become dysfunctional, parties could vote in favour of a vote of no confidence in a current mayor and a new mayor could be elected.  No political party is safe as decisions and agreements could change within a heartbeat.  What the future holds for our vibrant country, only time will reveal. The pros and cons of minority governments will become evident for all to see.   With all parties eyeing the 2019 National Elections, political parties will utilise these local minority governments to their benefit and build upon their support base from the residents of the Republic of South Africa.

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South Africa can be described as one of the most dangerous places in the world to be for a motorist, as 32 accidents occur per 100,000 people per year.1 This means that 17 600 accidents take place on the roads of South Africa per year. Taking the aforementioned fact into account, it is of vital importance that every citizen of South Africa familiarises themselves with the Road accident Fund (hereafter referred to as "RAF") and its operations.

The basis of the RAF's obligation to compensate motorists

Section 17 of the RAF act stipulates that the fund is obliged to compensate any person for any loss or damage in which the 3rd party has suffered (as a result of any bodily injury to him/herself or the bodily injury to any other person) caused by or arising from the driving of a motor vehicle by any person at any place within the republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the vehicle or of his or her employee in the performance of the employee's duties.2

A motor vehicle in terms of the RAF act

The act specifies that a motor car consists of a vehicle with no more than 10 persons inside the car, including the driver.3 If the aforementioned hurdle is crossed, the next point of consideration is that of a motor vehicle which can be defined as any vehicle designed or adapted to be propelled or hauled on a road by means of fuel, gas or electricity, including a trailer, caravan, an agricultural or any other implement designated or adapted to be drawn by said motor vehicle.4

What is a road in terms of the RAF act?

If it has been established that you are indeed driving a motor car and/or a motor vehicle, let's have a look at the normal meaning of a road. In Chauke v Santam Limited5 the court relied upon the definition used in Prinsloo v Santam Insurance Ltd6 which stated that it is "a line of communication, especially a specially prepared track between places for use by pedestrians, riders and vehicles".  Lewis JA extended the meaning of a road in Road Accident Fund v Mbendera7 where he stated that it should not be narrowly defined to only include a public road. Subsequent hereto, Mokgoatlheng J in Jeffrey v Road Accident Fund8 came to the conclusion that a footpath on a public park can be construed as a road for the purposes of the RAF act.

Case law relating to the aforementioned information:

In Chauke v Santam Limited9 the court had to decide whether a forklift was designed, adapted or modified in such a way that it would be suitable for a claim in terms of the RAF act. After considering the normal everyday use of the forklift as a forward propelled vehicle, the court came to the conclusion that it should not be construed as a vehicle solely based on the fact that it is used on a road. The court further stated that an objective, common sense meaning should be followed when interpreting the definition of a vehicle.10 In terms hereof the court explained that a forklift would not fit the description of a motor vehicle in terms of the RAF act as it would not be equipped with indicators and headlights, drive extremely slow and could be hazardous in some instances.11

The definition of a road was challenged and developed in Bell v Road Accident Fund12 where it had to be determined whether an airside (operational area) on an airport could be considered a road for the purposes of the RAF act. The airside in question had a two way road with a demarcated middle line, traffic control signs and could be utilised by licensed vehicles, including bakkies, trucks, tractors, transporters and passenger busses, as well as pedestrians.13 The court found that the legislator had no intention to limit the definition of road to only public roads and found that the road on an airside could be interpreted as a road in terms of the RAF act.14

The objective and common sense approach were again used in Berry v SPE Security Patrol Experts and Others15 where it had to be decided whether a six-seater golf cart shuttle service would be interpreted as a motor vehicle in terms of the RAF act. The vehicle in question was petrol driven with a steering wheel, lights, hooter, parking brakes, gears and more.16 The court came to the conclusion that the golf cart could be interpreted as a motor vehicle in terms of the act, as it was used in increasing numbers by shuttle services, while also performing the same tasks as normal vehicles in the parking lots of hospitals.17

Do you have a claim against the Road Accident Fund? Our team of experts is ready to assist you with your claim against the Road Accident Fund. Call JJR Inc Attorneys today and arrange a consultation.

 

1 Anon May 2015 http://businesstech.co.za/news/mobile/86756/shocking-number-of-sa-accidents-caused-by-mobile-phone-use/ (visited on 14 July 2016)

2 Section 17 of the Road Accident Fund act 56 of 1996

3 Section 1 of the Road Accident Fund act 56 of 1996

4 Section 1 of the Road Accident Fund act 56 of 1996

5 Chauke v Santam Ltd. (710/1994) [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A); (27 September 1996)

6 Prinsloo v Santam Insurance Ltd [1996] 3 All SA 221 (E) at 224 j - 225 d)

7 Road Accident Fund v Mbendera (2004 4 All SA 25 (SCA) par 9)

8 2012 4 SA 475 (GSJ)

9 Chauke v Santam Limited 1997 (1) SA 178 (A)

10 Chauke v Santam Ltd. (710/1994) [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A) par 11

11 Chauke v Santam Ltd. (710/1994) [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A) par 14

12 Bell v The Road Accident Fund [2007] SCA 83 (RSA)

13 Bell v The Road Accident Fund [2007] SCA 83 (RSA) par 7

14 Bell v The Road Accident Fund [2007] SCA 83 (RSA) par 10

15 (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10

16 Berry and Another v SPE Security Patrol Experts and Another (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10 par 5

17 Berry and Another v SPE Security Patrol Experts and Another (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10 par 10.3.4

article-3

The Road Accident Beneficiary Scheme (RABS) Bill was introduced in parliament and later opened for public comment in the latter part of 2015.  This Bill, when enacted, will replace the RAF with a new system of compensation called RABS.

The new scheme moves away from the insurance based system of compensation, which has been largely unchanged in South-Africa since 1946.   The new system is based on defined and structured benefits.  Government regards this as a reasonable, equitable, affordable and sustainable system, which entitles beneficiaries to medical services and income benefits.

RABS differs from RAF in that both victim and the person who caused the accident now have an equal claim, as opposed to the latter not having a claim under the RAF regime.  Furthermore, claims will no longer be paid out in a lump sum, but rather a monthly installment, during the time period directly following the injury suffered.

The main difference between the two systems would be that RABS does not require fault, in the form of negligence, to be proven before a claim may be considered.  This change makes obtaining benefits for the scheme much easier than it would have been under the RAF system.  The current infrastructure, employees and pending litigation of the RAF will be transferred to the RABS.

 

The rationale behind the change is that a lump sum does not have the effect of rehabilitation, as intended, but is rather spent on luxuries, which leaves the claimant penniless and possibly disabled or unable to earn a living.  Thus the new dispensation provides for monthly instalments calculated at a maximum and minimum cap, according to the national income average.   Payment shall persist until the claimant reaches the age of 60 or 15 years after the accident, which ever event takes place first.

The RABS Bill provides that children may only claim after their eighteenth birthday, leading to the conclusion that the three year prescription period only starts on the date the minor becomes a major. Previously, under the RAF, a claim would be submitted by the child’s parents on behalf of the child.  All other claims are subject to the three year prescription period, commencing from the date of the accident.  

The Act further stipulates that persons over the age of 60 may not lodge a claim for loss of income.  It is not explained if this provision includes both future and past income, causing some eye brows to be raised.

The important factor to keep in mind is that the planned changes have not been effected yet, thus the public still has the opportunity to raise their concerns.  Ultimately the majority of legal minds think that the proposed changes are for the better and will lead to long lasting rehabilitation, instead of exorbitant spending and finally added liability on an already thinly-stretched state budget.  The RABS might just be regarded as a mixed blessing.

 
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This newsletter 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.

 
sept-newsletter-01 1-Editor's-Letter

This month we are celebrating the diversity that is our country.

Thank you

Ke a leboga

Kea leboha

Ngiyabonga

Ngiyathokoza

Dankie

Ndi a livhuha

Ndza khensa

Enkosi

for sharing your culture with your fellow South Africans and contributing to this rainbow nation, showing the world how unison works.

Enjoy Braai Day!

JJR INC. Team

braai_0 1-header

“The display of religion and culture in public is not a 'parade of horribles' but a pageant of diversity which will enrich our schools and in turn our country.”1

South Africa is often described as a rainbow nation, a multi-cultural society with the Constitution protecting the right to participate in and enjoy the cultural life of their choice and the right to freedom of opinion, belief, and religion. The right to participate and enjoy your culture and/or religion can at times come into direct conflict with other rights and freedoms of people. In the matter of Smit NO and Others v King Goodwill Zwelithini Kabhekuzulu and Others2 the thrust of the conflict lies between the right to exercise and participate in your cultural and religious traditions against the protection of animals against cruelty.

The slaughtering of a bull is a ritual which forms part of the Umkhosi Ukweshwama festival of the Zulu nation. According to the tradition no crops may be harvested until they are blessed by the king and his sangomas. At the traditional ceremony Zulu warriors kill a bull barehanded by strangling it to death. In the Smit NO and others case it was stated that the warriors must kill the bull barehanded to test their courage and bravery and represented an opportunity to prove themselves to be worthy of being in the regiment. The tradition is protected by the Constitution, but South Africa also protects animals against cruelty with the legislation Animal Protection Act No 71 of 1962 as well as by subscribing to various international instruments that promote the welfare of animals and prevent any form of cruelty towards it.

The Applicant in the case of Smit NO and others described the killing as being done by a group of approximately forty men using their bare hands who rip the bull’s eyes, genitals and tongue out whilst it is still alive. Thereafter sand or mud is forced down the bull’s throat in an apparent attempt to suffocate it while it is trampled, kicked and beaten to death. Clearly indicative of a cruel and inhumane manner to kill an animal. In stark contrast the Respondents stated that the bull is overpowered to disable it by closing its airways and thereafter its neck is broken in a specific manoeuvre that causes a quick and painless death. No bloodletting of any kind is allowed nor is dismemberment of any kind whatsoever part of the ritual slaying.

In the Smit NO and others case the Honourable Justice Van Der Reyden ordered that the application for an interdict preventing the slaughtering of the cow be dismissed. Before turning to the reason it is important to take cognisance of the fact that whenever different rights clashes the court has the duty to weigh both sides and take into consideration all of the relevant factors. No individual has an absolute right to participate in his or her culture. The right can be limited under specific circumstances as with most rights.

The Honourable Justice Van Der Reyden in the judgment dealt with a very important issue regarding cultural or religious rights - the respect and tolerance of difference. The Applicants instituted action on the basis that the Zulu warriors killed the bulls in a very inhumane manner - a ritual that was not witnessed by the Applicants nor supported by any documentary proof. The judgment voices that we must guard against the preconceived ideas we hold or the misguided information we have regarding various cultures without investigating and learning about the traditions ourselves.

Enjoy braai day, whether you prefer a mielie or some meat, but do remember that Heritage Day is there to celebrate not only your own culture, but to learn from others.

 

1 MEC for Education: KwaZulu Natal v Pillay 2008 1 SA 474 (CC) at para 107.

2 Smit NO and Others v King Goodwill Zwelithini Kabhekuzulu and Others (10237/2009) [2009] ZAKZPHC 75 (4 December 2009).

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Mahatma Ghandi once said: “A nation’s culture resides in the hearts and in the souls of its people”.

Living in a democratic country with a vast diversity of cultures, this statement can carry far more weight than any of us can fathom. A simple act can be perceived through one lens as culture and through another as offensive with the effect that one person may feel oppressed and the other disrespected. In a working environment this is a very sensitive topic and must be dealt with carefully.

What is culture?

Culture is a way of life, it is the ideas, customs, and social behaviour of a particular group or society. Culture, in a nutshell, defines the group or society one belongs to and who we are in essence.

Do we have a right to our own culture?

Culture is regarded as one of the most important rights that a South African has. One’s right to culture is protected by the Bill of Rights, which forms part of the Supreme Law of South Africa, our Constitution. One can therefore conclude that this right may not be infringed upon or be taken lightly without just cause.

The Bill of Rights define one’s right to culture as follows:

30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.

31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—

(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

It is evident that this is a very important right for each and every person in South Africa.

The question therefore is, how do we balance everyone’s culture in a work environment? The answer to this lies within in the specific organisation’s ability to incorporate a corporate culture.

Corporate Culture

Corporate culture is regarded as the equaliser between varying poles in a work environment. It is a very important culture to cultivate in a working environment in order to protect one’s business as well as one’s employees in the long run against a disarray of ways of conducting oneself in strife with the company policy.

This type of culture is unique to a business and applies to employees universally without infringing upon their personal right to culture. When there is a clear culture within a business everyone reforms thereto without feeling oppressed and a possible hick-up between employees will be dealt with on a level playing field.

Should an employee not adapt to the corporate culture of a specific business the employer has the option of dismissal for incompatibility at its disposal. Incompatibility arises when employees are unable to work harmoniously with their colleagues, or are unable to adapt to the corporate culture of the workplace.

The rationale for this dismissal lies within the fact that an employer has a right to expect its employees to adapt to norms and standards set by the employer, and to conduct themselves accordingly. Incompatibility is in essence an irreconcilable breakdown in the working relationship caused by personality differences, resulting in the employee’s inability to work with others. When the continued presence of the employee concerned causes disharmony in the workplace the employer is entitled to address the problem, and, if it does not improve, to remove the cause of the discord by dismissing the employee.

Conclusion

Culture is synonymous with that which one believes in and stand for. As South Africans we are privileged to have our cultures regarded as an important part of who we are. In a society where there are numerous different cultures it is of vital importance for companies to adapt, and incorporate a corporate culture in order to respect and protect each individual’s personal culture. This will create uniformity that everyone understands. This will ensure that no oppressive behaviour will be entertained in one’s workplace.

As Edgar Schein correctly pointed out; “The only thing of real importance that leaders do is to create and manage culture”.

3-header

“I didn’t get the job because I am a woman”
“I was not promoted because of my race”
“Our company only appoints married men in the marketing department”

In a country trying to reconcile previously disadvantaged groups and individuals, the occasional emerging of discriminatory remarks is not surprising. Luckily the legislation has been amended and implemented to such an extent that South Africa is currently one of the leading countries with a world class legal system to sort out disputes of this nature.

Section 6 of the Employment Equity Act 55 of 1998 (“EEA”) prohibits unfair discrimination by stating that “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture language and birth.” The EEA goes further by stating that it is not unfair discrimination to implement affirmative action measures consistent with the EEA, or to “distinguish, exclude or prefer any person on the basis of an inherent requirement of a job”.

South African labour law legislation read together with the EEA however creates a platform for the prevention of unfair discrimination in the workplace. The question is however, how do you go about to report and resolve an alleged unfair discrimination dispute?

There is a fine line between an unfair labour practice dispute as defined in Section 186(2) of the Labour Relations Act, 66 of 1995, as amended (“LRA”) and an unfair discrimination dispute, as set out herein above. In instances where an employee feels aggrieved due to non-promotion, he / she is usually torn between whether to refer the matter to an external forum as an unfair labour practice dispute or an unfair discrimination dispute. The reality is that non-promotion is usually due to the employee not fulfilling all the inherent requirements of the position. In instances where it is clear that the position may be fulfilled by all genders, but specifically excludes males of a Caucasian ethnicity, questions can arise as to whether this may be regarded as unfair discrimination.

If the non-promotion falls within the ambit of “unfair discrimination” as defined in the EEA, the dispute should be dealt with as an unfair discrimination dispute. In cases where the non-promotion is due to a procedural error or alleged oversight by the employer, the dispute should be dealt with as an unfair labour practice dispute.

In terms of the LRA, unfair labour practice disputes can be adjudicated by the Commission for Conciliation Mediation and Arbitration (“CCMA”) and accredited Bargaining Councils by referring the dispute within 90 (ninety) days of the incident.

Section 10 of the EEA indicates that an unfair discrimination matter should be referred to the Commission for Conciliation Mediation and Arbitration (“CCMA”) within 6 (six) months of the incident for a conciliation process. Should the parties fail to resolve the dispute at conciliation, the Commissioner could either issue a Certificate of Outcome, stating that the matter should be referred to the Labour Court, or the parties can agree that the matter be arbitrated under the auspices of the CCMA.

It is therefore clear that it is of utmost importance to clearly distinguish whether a dispute is in fact an unfair labour practice dispute or an unfair discrimination dispute. The distinction between the two disputes will determine which Act is applicable to the dispute at hand as well as the jurisdiction of the external forums in this regard.

It is advisable that you seek legal advice from a firm or an individual specialising in labour law, or the CCMA prior to referring a dispute if you are uncertain what the nature of the dispute is.

Know the difference, so that you can protect your rights.

 
sept-newsletter-02
 

This newsletter 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.

 
1 1-Editor's-Letter

Dear Reader

We would like to make a tribute to the women of South Africa, who have fought hard for equality, dignity and lawfulness – and for this they are true heroes.

Even though women have made their mark as equal citizens, some things will always be like kryptonite to every super woman out there.

In this issue we provide you with guidance and additional superpowers on how to overcome some issues that still surface to this day. Albeit maintenance issues, sexual harassment or even traditional hurdles - we’ll be the Robin to your Batgirl.

Don’t let anyone steal your thunder. You are magnificent.

JJR Inc. Team

7 4

If a person dies without a valid will, the deceased estate will be wound up in accordance with the Law of Intestate Succession, therefore statutes and governing law will decide how the estate will be distributed and it will not follow the wishes of the deceased. But in the not so distant past, women married under customary law were unable to inherit from their spouses should they have passed without a valid will and the situation was similar for couples in a religious marriage.

Historically, the African system of succession was governed by the principle of primogeniture in the male line. Primogeniture is a rule of customary law that allows the oldest male to succeed the person who passed away to the exclusion of all others. The male ascendants would be considered in the situation where the deceased had no descendants. Therefore, any of the deceased’s wives would not be able to inherit intestate.

In our post-Constitution country, this appeared to be unconstitutional as it discriminated against women married under customary law. In 2004 the Constitutional Court ruled in the case of Bhe v Magistrate of Khayelitsha and others1 that the practice of primogeniture is unconstitutional. In this case the deceased’s long term partner and his two daughters were unable to inherit or claim maintenance from the estate based on the fact that they were female. The whole of the deceased’s estate was inherited by the deceased’s father by way of primogeniture. Since this ruling the situation has changed. Women married under customary law and in polygynous marriages as well as all the children of the deceased, including illegitimate ones, now have equal succession rights.

To bring the legislation in line with the above ruling, the Reform of Customary Law of Succession and Regulation of Related Matters Act2 (hereinafter “the Act”) was promulgated on 20 September 2010. The Act does away with primogeniture and states that should there be enough money in the estate every spouse of a polygynous marriage may inherit the equivalent of a child’s share which cannot be smaller than R250 000. If there is not sufficient money in the estate, the estate will be divided equally between the surviving spouses.

Religious marriages are not recognised in the South African legal system, and therefore couples married in accordance thereto were not able to inherit from one another in intestate estates. This is no longer the situation. Constitutional Court Justice Albie Sachs found in the Daniels case3 that all laws should be read in the spirit of the constitution. In this matter the Constitutional Court found that with regards to inheriting property and claiming maintenance, Islamic and Hindu marriages are seen as marriages and therefore the parties will be able to inherit from one another in intestate estates. In 2009 the Constitutional Court ruled in the Hassam case4 that when a man dies without a valid will and has more than one wife in a religious polygynous marriage, all spouses will inherit equal shares.

It is important to note that for a will to be considered valid the will has to be undersigned and signed on each and every page by the testator and two competent witnesses in each other’s presence. A competent witness is anyone over the age of 14 years, who is able to sign their name and will be able to testify in a court. The witnesses cannot be the executor of the will or receive any benefit from it.

In light of the above it is always better to have a valid will to ensure that one’s possessions are distributed in accordance with one’s wishes. It is also important to keep one’s will updated and include any new and relevant changes that may have an impact on one’s estate.

 

1 2005 (1) BCLR 1 (CC)

2 11 of 2009

3 Daniels v Campbell NO and Others. 2003 (3) All SA 139 (C)

4 Hassam v Jacobs NO and Others. 2009 (5) SA 572 (CC)

5

Filing for a divorce is a daunting experience and strikes fear into most of us. Unfortunately life often throws us these curve-balls, leaving us with no choice but to catch! Luckily the South-African legislature has provided for a set of “gloves” to make catching a bit easier.

For a spouse to claim maintenance three considerations need to be addressed. Firstly, the ability of the person liable for payment is deliberated. Thereafter the court determines whether a true need for maintenance exists with the other party. Lastly, the amount which may be claimed must be determined.

Looking at other countries: England has a system by which maintenance is calculated as a portion, not representing more than 34% and no less than 14%, of the debtor’s income. South-Africa does not use the so-called portion system, but rather a rule of thumb, formulated by the courts. A young child is considered to require one part, whereas older children and the spouse make up two parts of the total maintenance due, respectively.

The first step to determine the need is to draft an income and expenditure statement for each of the parties. In cases where minor or dependent children have to be maintained by the divorcing parties it is impossible to calculate the monthly maintenance needs of the parties in isolation. Therefore one must include in the budget each party’s specific expenditure in respect of the children. For example, if the caregiving parent has four children, aged 4, 12, 18 and 22, who reside with him or her, the youngest child will be allocated 1/8 (one eighth) of such expenses and the older children and the parent 2/8 (two eighths) each.

Often the child would mainly reside with one of the parties. This party will, naturally, have a higher expenditure and thus a greater need for maintenance. As rule of thumb, all expenses incurred for the benefit of the child by the caregiving parent is shared by the parties in accordance with the part-system set out above.

Other specific individual expenses which cannot be apportioned between family members, such as school or university fees, the cost of extramural and/or recreational activities, club- and professional membership fees should be allocated in full to the relevant child or spouse.

Ultimately parties should engage in settlement negotiations, prior to seeking relief from courts. In instances where maintenance is payable for the caregiving of a child, said settlement has to be endorsed by the Family Advocate to ensure that the settlement is in the best interest of the child. The terms of a settlement agreement can be made an order of court, which will make enforcement thereof easier.

A last word of advice would be to ensure that the settlement agreement provides for annual adjustments of the amount due in accordance with the Consumer Price Index. Should this clause be omitted from the agreement the amount payable may in time become insufficient. An application to court to have maintenance increased is quite costly and lengthy and can effectively be avoided by simply providing for annual adjustments.

6

“No one can make you feel inferior without your consent.” ― Eleanor Roosevelt

What is Sexual Harassment?

The substantial effect of sexual harassment in the everyday life usually goes unnoticed due to the fact that no formal statistics of this specific issue are made public.

In terms of the Code of Good Practice on the Handling of Sexual Harassment, sexual harassment can be defined as “unwanted conduct of a sexual nature”. 1The legislator places great emphasis on the unwanted nature of the harassment, in order to remove any doubt relating to consent. The Protection of Harassment Act, 17 of 2011 elaborates on this by stating that sexual harassment is any conduct by the perpetrator in which said person knows or ought to have known that he / she is causing harm,2 or inspiring the belief that harm will be caused through the unwanted conduct. The aforementioned conduct includes, but is not limited to: watching, pursuing, accosting and loitering the complainant. Further prohibited conduct includes: sending, delivering or causing delivery of letters, facsimiles, and electronic mails as well as any verbal or electronic communication that may be conceived as being harmful.3

What to do if you are a victim of sexual harassment in the workplace?

Sexual harassment in the workplace is an extremely sensitive issue and victims rarely feel comfortable to approach the perpetrator or a superior to lay charges against the perpetrator. It is therefore wise to consult your company’s internal procedures relating to the reporting of sexual harassment procedures or to report the issue to the designated individual that handles the internal affairs of employees to make your concerns known.

It should however be noted that despite internal procedures and disciplinary action being available to you, nothing prohibits you as a victim to institute a civil claim or lay a criminal charge against the perpetrator. As a preventative measure, the law has been developed through the Protection of Harassment Act 17 of 2011 to ensure that early assistance and effective protection is readily available. The act makes provision for an application to be delivered to the clerk of the Magistrate's Court in your district, who will as soon as possible refer the matter to a court.4 In cases of extreme urgency the court may hear the matter outside the normal court hours, if they believe that the person is already suffering harm or may suffer further harm if the issue is not rectified as soon as possible.5 Immediate relief in the form of an interim protection order may be granted by the court if the evidence at first sight leads to the reasonable belief that the perpetrator is causing harm to the complainant through his / her conduct6 The interim relief will however be subject to a return date, which gives the alleged perpetrator an opportunity to state reasons why it should not be made a permanent order of court.7

Judiciary development in regard to Sexual Harassment

In the matter of SA Metal Group (Pty) Ltd v CCMA and Others8 the Commissioner allocated to the dispute by the CCMA firstly came to the conclusion that no sexual harassment took place as the Complainant did not make her objection to the unwelcome verbal banter public in any way. The matter was subsequently referred to the Labour Court where the presiding Judge concluded that the conduct fell within the ambit of verbal sexual harassment as the banter contained "unwelcome innuendo, suggestions and hints”. In this case the Labour Court found that the dismissal of the perpetrator was substantively fair.

In Ntsabo v Real Security CC,9 the court had to decide whether the failure of an employer to act and therefore protect the employee from sexual harassment could lead to liability if said conduct led to the resignation of the employee. In this instance the Court concluded that the employer should be held accountable and it awarded twelve months’ remuneration to the employee. The maximum compensation of 24 months10 was found not to be applicable as sexual harassment could not fit into the criteria of automatic unfair dismissal which includes supported strikes, discrimination, pregnancy and so forth.11

In summary, there is recourse for victims of sexual harassment whether in the workplace or in your personal life. If you are a victim of sexual harassment, make an appointment with your attorney today.

 

1 Item 3(1) of the Code of Good Practice on the Handling of Sexual Harassment.

2 In terms of Section 1 of the Protection from Harassment Act 17 of 2011 harm can be defined as "any mental, psychological, physical and / or economic harm."

3 Section 1 of the Protection from Harassment Act 17 of 2011.

4 Section 2(7) of the Protection from Harassment Act 17 of 2011.

5 Section 2(5) of the Protection from Harassment Act 17 of 2011.

6 Section 3(2) of the Protection from Harassment Act 17 of 2011.

7 Section 3(3)(c) of the Protection from Harassment Act 17 of 2011.

8 (C350/13) [2014] ZALCCT 68; (2014) 35 ILJ 2848 (LC) (15 April 2014)

9 (2003) 24 ILJ 2341 (LC).

10 Section 194 of the Labour Relations Act 66 of 1995.

11 Section 187 of the Labour Relations Act 66 of 1995 read together with judgement of Ntsabo v Real Security CC 2003 4 ILJ 2341 (LC)

 
AUGUST newsletter-02
 

This newsletter 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.

 
July-newsletter-01 1-Editor's-Letter

Dear Reader

Before you consider purchasing or selling a property, read our article “First time home buyer?” to be prepared for and aware of the legal costs involved to avoid delving into your kids’ trust fund.

However, if you have already purchased the property and was planning on building your wife’s dream house, but realised the intended deck with the perfect view over the lake is no longer possible due to an uneven surface, it’s not over yet - the CPA is here to save the day! Read our article “When Acquiring a Piece of Terra Firma Turns into an Ordeal”, to find out more.

Maybe your wife is already enjoying her afternoon tea on the deck of her dream house. However, you have a different type of problem. The Man vs Tree problem. Your driveway is bumpy and paved by protruding roots of your neighbour’s mighty oak and your swimming pool is constantly covered with leaves. Read our article: “Good trees, bad neighbours” to find out how man conquers tree in the battle of Man vs Tree.

Enjoy the read!
JJR Inc. Team

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4

Visualise yourself the following scenario:

Mister “A” and Miss “B” (hereafter the ‘buyers’) contracted with X COUNTRY ESTATE PROPRIETARY LIMITED (hereafter the ‘seller’) in order to purchase and obtain Erf 1143 Imaginary Land Extension 2. The purchase price of the said Erf was R1 500 000.00. The aim of the buyers to buy the Erf was to enable them to immediately build their dream house on the Erf. This aim was duly communicated to the seller who vowed that the land was perfect for the buyers’ needs. After concluding the contract of sale the buyers started to make arrangements to build said house on the Erf just to find out that the inclination of the land was too steep to immediately commence with their building arrangements and the buyers will incur further costs to remedy the inclination.

This must ultimately be any buyer’s worst nightmare. Not only are you stuck with land you cannot immediately utilise, but your budget has sporadically escalated without prior notice.

Two questions arise:

1. Will the Consumer Protection Act, No 68 of 2008 (hereafter ‘CPA’) apply to the facts of the matter?

2. Did the buyers waive their implied warranty by discharging the seller from any liability in the contract of sale?

Answer to question 1

The selling of the land was during the course and furtherance of X COUNTRY ESTATE PROPRIETARY LIMITED’s business, which therefore makes X COUNTRY ESTATE PROPRIETARY LIMITED a supplier.1

A supplier may not in terms of the CPA2 mislead a consumer to believe material facts about goods (land) which is not true.3 The intention and aim of the buyers were clear from the very start, namely that the main reason for buying their Erf was to immediately build a home. This intention and aim was duly communicated to the sellercaveat.4 Therefore, the seller (supplier) did not fulfil his/her obligation towards the buyers (consumers).5

The seller may approach the buyers with an opportunistic ploy, but no matter what the seller alleges it is clear from the CPA that the buyers (consumers) had a reasonable expectation that the stand was suitable to build a home on. This will result in the consequence that the implied warranty contained in Section 56 of the CPA will immediately come into effect to aid the buyers (consumers).6

 

Answer to question 2

Usually the caveat subscriptor rule applies to contracts, which means you are bound by the contract that you have signed.

In terms of the CPA on the other hand, Section 49(1) clearly states that notice has to be given to a consumer if his/her rights are being restricted or if the supplier is being indemnified for any cause. This notice requirement was of paramount importance in the buyers’ case due to them making it clear they wanted to build a home.

Therefore, the buyers did not waiver their implied warranty.

 

The crux of the matter?

When you buy a piece of land to build your dream home on do not fear when the CPA is near. Once the seller promotes the land to you as a paradise to build your property on and reality turns grim, it will be regarded as spurious and will you, as a consumer, have remedies to rectify the hoodwink sold to you.

 

1 A ‘supplier’ in terms of the CPA is defined as a person who markets any goods or services. ‘Market’ furthermore means to promote or supply any goods or services. The question therefore is what constitutes ‘goods’ and will land form part of said ‘goods’? The CPA define ‘goods’ in much detail and amongst other things a legal interest in land or any other immovable property falls within the ambit of said definition. Real estate development or property development is a multifaceted business process, encompassing a variety of activities including the purchase of raw land and the sale of developed land or parcels to others.

2 Section 41(1)(a) of the CPA 68 of 2008 defines misleading as directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer.

3 In terms of Section 41(3)(c)(i) and (ii) will it be regarded as misleading or deceptive representation to falsely state or imply, or fail to correct an apparent misapprehension on the part of the consumer to the effect, that any land or immovable property has characteristics that it does not have or may lawfully be used, or is capable of being used, for a purpose that is in fact unlawful or impracticable.

4 In terms of Section 55(3) if a consumer specifically informs the supplier of the particular purpose for which the consumer wishes to acquire any goods, or the use to which the consumer intends to apply those goods, and the supplier ordinarily offers to supply such goods, or acts in a manner consistent with being knowledgeable about the use of those goods, the consumer has a right to expect that the goods are reasonably suitable for the specific purpose that the consumer has indicated.

5 Section 55(2)(a) goes further and determines that every consumer has a right to receive goods that are reasonably suitable for the purposes for which they are generally intended.

6 Section 56(1) and (2) determines that in any transaction or agreement pertaining to the supply of goods to a consumer there is an implied provision that the producer or importer, the distributor and the retailer each warrant that the goods comply with the requirements and standards contemplated in Section 55, except to the extent that those goods have been altered contrary to the instructions, or after leaving the control, of the producer or importer, a distributor or the retailer, as the case may be. The remedy available to the consumer is that within six months after the delivery of any goods to a consumer, the consumer may return the goods to the supplier, without penalty and at the supplier’s risk and expense, if the goods fail to satisfy the requirements and standards contemplated in Section 55, the supplier must, at the direction of the consumer, either repair or replace the failed, unsafe or defective goods, or refund to the consumer the price paid by the consumer, for the goods.

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“Before anything else, preparation is the key to success.” ~Alexander Graham Bell

You have taken the first big step; you have decided to buy your very first home. Like everything else in life, proper financial planning and preparation will ensure no unexpected financial surprises. In practice, we often find buyers surprised when handing them statement of accounts for attorney fees payable.

It is important to take note that, when buying a property, there are attorney fees involved. Attorney fees are split into two categories. The buyer is firstly responsible for payment of transfer fees to the transferring attorney. This fee is payable to the attorney to ensure that the transfer of the property is registered in the buyers name.

Most people are dependent on financial institutions to grant them a home loan to purchase a property. This is where the second category of attorney fees becomes applicable. The Bank will instruct a bond registration attorney to register a bond against the property in their favour, as the Bank is lending money to the buyer. The buyer will then be responsible for the bond attorney fee for the registration of a bond over the property.

The bank only grants the purchase price of the property and will not include your bond registration or transfer fee in your available bond amount. The transfer fee is calculated on the purchase price of the property and the bond registration fee is calculated on the amount that you are borrowing from the bank.

For example, should the Purchase Price of a property be R600 000.00 (Six Hundred Thousand Rand), the transfer fee will be calculated on R600 000.00. But, you have saved a small deposit and you have already saved up for transfer and bond registration fees. You therefore, only need to borrow R550 000.00 (Five Hundred and Fifty Thousand Rand) from the bank to buy your dream home. Your bond registration fee will therefore only be calculated on R550 000.00 (Five Hundred and Fifty Thousand Rand) and not on the purchase price of R600 000.00 (Six Hundred Thousand Rand).

*Tip: When going out to view properties, ask your estate agent for a sheet with transfer and bond registration fees. It is calculated on sliding scales.

Click here to see our Cost Sheet.

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It is a landowner’s right (and is a normal incident of landownership) to build and plant trees on his / her property. However, encroaching trees can cause a lot of disputes between neighbours, especially in the following instances:

• leaves falling in the other`s swimming pool or blocking gutters and obstructing sewage systems;
• branches overhanging the other`s fence or dropping fruit into the other`s yard ;
• branches blocking the other`s sunlight (from solar panels or TV reception);
• roots causing damage to the other`s property.

Your right as an owner of land may also be restricted by your neighbour’s rights, which may arise from the following:

Limited real rights and personal rights, which may be created by statutory provisions or by conditions in the original deed of grant of land. Limited real rights may be created by provisions of a will or as a result of a contract of sale, reserving a servitude over the land to the seller. Personal rights allow the holder to exercise some of the normal incidents of landownership (for example building or planting trees) or prohibiting the other landowner from exercising some of the normal incidents of ownership and thereby limiting such ownership;
The rules of neighbour law, which impose common law limitations on landowners such as instances of encroachment, drainage of surface waters, nuisance, and others.
The law of delict. For instance if a landowner has neglected to take reasonable precautions to ensure the safety of others, he / she may be liable for damages to a person injured as a result of the negligence.

How to proceed when your neighbour is ignoring your rights:

• In the case of encroachment by trees, you may request the neighbour to prune their trees. If your neighbour refuses you are entitled to remove the overhanging branches;
• If the trees or root systems are causing damage to your wall / property or there is a risk of it doing that, you may apply for an interdict to compel him / her to remove the trees;
• You may also claim for the damages caused to your property by the encroaching trees or tree root systems;
• If the trees are causing a nuisance you can also apply for an interdict.

One must however keep in mind, that although one may apply for an interdict, it does not necessarily guarantee success. For instance, In the case of Vogel v Crewe and Another1, the Applicant applied for an interdict for the removal of his neighbour’s trees as it was constituting a nuisance because it blocked the gutters and sewage systems and caused problems by shedding leaves in his pool and on surrounding areas. He also argued that the trees and root systems were causing damage to the wall which was constructed by both of them together to separate the two properties.

The court held that the test which must be applied when deciding whether a set of circumstances constitutes a nuisance, is an objective test based on reasonableness, even if the nuisance involves the actual inflicting of damages. The court found that the benefits of conserving the trees had to be weighed against the nuisance caused to the applicant.

The court considered the following facts:

1. The trees were not planted directly against the wall, but were approximately two metres away from the wall;
2. When the wall was erected subsequent to the planting of the trees, it was built within the borderline of the respondents’ property thereby affecting the perceived proximity of the trees;
3. Trees form an essential part of our human environment, not only in terms of giving us aesthetic pleasure but also functionally in the provision of shade and oxygen.

The court ruled that the damages to the wall was not severe and that the parties should rather repair the wall than remove the trees. With regards to the overhanging branches, the court held that the applicant may request the respondents to prune their trees. If the respondents refuse to do so, he is entitled to cut off the overhanging branches, in line with the boundary. There was further not sufficient evidence to show that all the problems complained of had been caused by the overhanging branches. The application was refused with costs.

It is therefore always better to first try and resolve matters amicably with your neighbour. However, if you have a difficult neighbour you always have your Attorney to fight for your rights.

 

1Vogel v Crewe and Another (2004) 1 ALL SA 587 (T).

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This newsletter 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.

 
June-newsletter-01 1-Editor's-Letter

Dear Readers

Today we are discussing one of the most important and valuable “possessions” in the world. No it’s not cars, property or financial investments, it is our Children.

Everyone knows that children are the future, the hope of a nation - an ideology etched into our brains. Yet we still do not treat children or protect them as one would protect and treat someone or something one considers that valuable.

We often think that we have to change the whole country…or world… at once. So often we desperately want to do our part for charity and humanity and do not have the time or opportunity to do just that.

When Mother Teresa received the Nobel Prize, she was asked, “What can we do to promote world peace?” She answered “Go home and love your family.”

It all starts at home. If all parents can set good examples for their children; protect their children’s rights; always love, care for and act in the best interest of their children, the country and the world would be a much better place.

Enjoy the read!

JJR Inc. Team

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One of a parent’s concerns is getting a call from the school principal informing them that Jimmy or Jeanine has misbehaved, but an even greater disquiet would be getting a call informing you that your child has taken a bad fall.

Who is liable and who will foot the bill?

After the landmark case of The Member of the Executive Council of Gauteng Responsible for Education v Carl Pierre Rabie1, South-African law can finally provide a clear-cut answer!

In this case a grade 8 leaner from a well-known school in Pretoria had a bad fall on school premises, during school hours. The court found that a school owes a duty of care towards both learners and their parents. This duty includes that learners should be kept under supervision in an attempt to prevent injury. Should there be a negligent breach of this duty the school would be held vicariously liable for damages suffered.

It should however be noted that the duty of care is a so-called reasonable duty of care. Thus the duty of care would depend on the age of the child and the nature of the school as the main considerations in such a claim.

In the case of State schools the claim is instituted against the relevant governing body, whereas in the case of a private school the claim may be brought against the school itself. Should the school have insurance for such an occurrence, the parents would claim directly from the insurer.

What should be proven?

Firstly, the court must determine what risk of harm a “careful farther” would have foreseen and then determine if the school was negligent in not living up to such standard.

Schools can, however, not be held liable for every accident occurring during school hours. The South-African law does not require a school to employ constant supervision over children in their care. The reasoning for this is found in the argument that a child’s physical and intellectual capabilities can only be developed if he or she is allowed to use his or her own initiative in certain situations. Thus the possibility of risk is weighed against the possibility that the activity is needed for development in determining if the school had incurred liability.

What if a child causes an accident during school hours and while the school should have been supervising him or her?

The South-African law determines that when a child causes an accident in which other people are injured or killed, the victims have a claim against both the school and the child’s parents. In these circumstances the school is held liable due to having failed to adequately supervise the children entrusted into their care.

The most recent example of a case where a child suffered injuries while the school should have been supervising is the Supreme Court of Appeal decision of Pro Tempo Akademie v van der Merwe2 , in March 2016. Here, a school was held liable for injuries sustained by a learner on the playground after he impaled on a steel rod (erected by the school to support recently planted saplings) when he sat on it. The court regarded public and legal policies as chief considerations in determining liability.

In conclusion it should always be remembered that when parents drop their children off at school they believe that their children will be safe. In theory, it should be easy to prove that a school has acted negligently, but as we all know, practice and theory rarely sit alongside the same camp fire. Although the Rabie-case is revolutionary in itself, each and every case will have to be considered on its own merits.

 

1 Member of the Executive Council of Gauteng Responsible for Education v Rabie (A758/06) [2008] ZAGPHC 71 (7 February 2008).

2 Pro Tempo v Van der Merwe (20853/2014) [2016] ZASCA 39 (24 March 2016).

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“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they can grow up in peace.”- Kofi Annan

In the divorce battle field the children have often become the prize of the victor. Disregard is given to their welfare and their rights are not considered- as long as the winner takes it all. The views of the minor children were often disregarded in the past, but with the enactment of the Children’s Act 38 of 2005 changes are slowly but surely taking place. Children are no longer only to be seen and not to be heard.

Throughout the Children’s Act (hereinafter referred to as the “Act”) provision is made for the solicitation of the children’s views. Firstly section 10 of the Act provides that:

“Every child that is of such an age, maturity and stage of development as to be able to participate in any manner concerning that child has the right to participate in an appropriate way and views must be given due consideration.”

The Act therefore specifically determines that serious consideration MUST be given to the sentiments of the minor child. The weight that is attached to the view of the minor child is influenced by the age and maturity level of the child in question. Parents in divorce proceedings are often confronted with a situation where the minor child states that he or she wishes to stay with the specific parent. Parents involved in divorce proceedings must take cognisance of various factors that the court will consider, and this does not entail that the voice of the child is not heard. The views of a child is very important, but is not the only factor used to determine the primary residence or contact rights.

The Family Advocate acts as an advisor to the court and must factor the views of the child in their recommendation. It happens that under the heavy caseloads of the Family Advocates the view of the minor child is not always presented in the best manner possible. It can be inappropriate to use the report by the Family Advocate as the only source of the view of the minor child. The Court, as Upper Guardian of minor children, must ensure that the sentiments of the minor child are taken into consideration. In the recent case of B v B (18251/2015) [2016] ZAGPJHC 49 is a clear illustration thereof. The parties in B v B divorced during 2008 and primary residence was awarded to the Respondent, the mother of the minor children. During the course of 2013 the Applicant, the father, requested the Family Advocate to re-evaluate the position regarding the residency of the minor children. He did this because both the children had over some time continued to express a desire to reside with him.

Both parties in this case are good parents and the issue before the court was whether the applicant's contention that the children have expressed a desire to live with him should be the primary reason for ordering that the status quo be upset. The Honourable Justice Ranchod stated that, “It is evident that the child's wishes are not the primary consideration or at all decisive in determining his or her best interest. The court must only give "due consideration" to whatever views the child expresses. It does not require deference to the child's expressed wishes: the duty of the court is to establish what is best for the child, and this may require the court to reach a decision that is different from what the child wants. The child's wishes must however be ascertained and considered.”

The case clearly illustrated that the wishes must be properly considered in context of various factors and that it all boils down to acting in the best interests of the minor children. The difficulty remains that the adults taking care of the minor children are the only ones that can ensure that due consideration be given to the views of the child in divorce litigation. The Courts are tasked with the duty of ensuring that the views are properly before court, either by way of the Family Advocate report, an independent legal representative for the child/children and even in some instance direct evidence given by the child/children. It is the duty of the adults in the lives of the children to ensure they are given voice.

“We cannot always build our future for our youth, but we can build our youth for the future.” - Franklin D. Roosevelt

This ideology was made a priority by the drafters of our Constitution where children's rights are set out clearly in Section 28 of the Constitution of the Republic of South Africa, Act 108 of 1996, under Chapter 2 - the Bill of Rights and is titled: “Children”. The reasoning behind such strong focus on protecting the rights of the children in our country is because children are among the most vulnerable in society.

Section 28(2) of the Bill of Rights emphasises the importance of the children's rights and that their best interests shall be of chief concern in every matter regarding them.

Further legislation promoting the best interests of children and making sure their rights are respected, is the Children's Act 38 of 2005 (“the Act”). This Act looks at the holistic environment of a child and aims to have families stay together and that a child is cared for by parents, family or alternative care if no family exists.

The Department of Social Development in conjunction with UNICEF, Unite for Children, have published three booklets to explain the Children’s Act to children of between 11 and 15 years old and to make them aware of the Act and the protection it provides.

• Booklet 1 briefly explains the rights and responsibilities of children and those of the parents;

• Booklet 2 deals with prevention, early intervention and care; and

• Booklet 3 focuses on the protection provided by the courts and the Act itself.

These booklets can be searched for and accessed via the website of the Department of Justice (http://www.justice.gov.za) or Unicef’s website (http://www.unicef.org/southafrica/resources_8141.html).

The Act covers a variety of areas in which children and those responsible for them are to be governed. However, the recurring theme throughout, is the children's best interests which is the gauge and main concern to be taken into account when deciding on the outcome of a situation. As long as the scale tips in favour of the best interests of the child, the decision taken is indeed the correct one.

An example of an instance where the best interests were not taken into account is in Susan's case1. Her parents constantly fought and a social worker had Susan removed from this environment. On face value it was considered to be the best solution, however, after being placed with foster parents she fell ill because of her longing for her parents. It is thus clear that her best interests were not taken into account, because she was not given the opportunity to let her needs, in this matter, be heard. What she wanted was for her parents to stop the fighting, and create a caring environment for the family to live in.

It is important that adults truly take cognisance of the bigger picture when children are involved in any manner. Adults must set the example so that the best interests of children can be promoted through daily acts performed.

Therefore, take a moment from your busy life and reflect on how your day-to-day actions contribute towards making the youth, especially those in your immediate vicinity, ready for whatever the future may hold for them.

“Children participate when they are heard. When the qualities of their character are nurtured and affirmed, this gives them the confidence to try the new and grow.” - Nodi Ipp, Virtues Project.

 

1 Page 5 of Booklet 1, https://www.google.co.za/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwib-56ylpPNAhXiD8AKHTBgDhIQFggbMAA&url=http%3A%2F%2Fwww.justice.gov.za%2Fvg%2Fchildren%2Fdsd-Children_Act_ExplainedBooklet1_June2009.pdf&usg=AFQjCNH-EtUf-dLu7pBR0IWj7JbL6fXsOw&sig2=8A47tGz7xm0EeWzku93v5A this site was visited on 15 May 2016 at 23:10

 

June-newsletter-02
 

This newsletter 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.

 
May newsletter-Bo Editor's-Letter

Reasons for the Editor’s strike:

1. Employees rendering services without a written contract of employment!
2. Paternity leave: “We want more!”
3. Register for Workmen’s Compensation. “Laat hy val waar hy wil!”
4. I fancy my colleague, but can I show affection at work? Regulate personal work relationships!
5. I do not know my company’s rules and procedures because it is not in writing! Get a company policy!

If all demands have been met the Editor will resume her duties for the June edition.

JJR Inc. Team

Thank you for reading our Newsletters. As a token of our appreciation we will offer 15% discount on all contracts of employment and company policies during the month of May 2016. Terms and conditions apply. Contact us at labour@jjrinc.co.za.

May-newsletter-Footer

Article-1

It is 20H00 on a Tuesday afternoon. You, as a workaholic or just a dedicated worker, are spending time on your computer, trying to catch up on some admin or to finish up a big project that is due for tomorrow. Was it not for your two other colleagues in the open plan office space who dedicated their time and devotion to their hopes and dreams for a financially free future whilst drinking a double shot espresso, you would have reconsidered staying later to finish up work. You are not alone. Suddenly, you share the same devotion and struggles and that is all that is required to find some common ground in a potential friend. You start conversing by the printer. You find out that you both share the same sentiment for French cuisine and before you know it, you’ve made a friend.

Even though most employers welcome a friendly work environment, there is a fine line between appropriate and inappropriate work relationships that can potentially harm the employer and lead to various forms of misconduct. How can this be?

Whilst you and your new found friend casually converse over a cup of coffee, you will be more lenient to disclose information that was not necessarily meant to be overheard by your new friend, yet, because of the common ground, you now feel safe to share what’s on your mind. Another issue that might occur is that you are now so preoccupied in looking for that French recipe you discussed, that you are taking up your employer’s time, not fully dedicating your attention to your employer during work hours.

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Sounds a bit harsh, doesn’t it? Not allowed friends, required to work late. Even though employers cannot necessarily regulate internal work relationships of any kind, disclosure of your relationship status with a colleague is not seen as an unreasonable request. Employers are becoming more and more aware of the fact that the personal lives of their employees and their work environment overlap at times. As an employer it would therefore be advisable to rather be aware of the relationships than to deny its existence in totality.

Let’s say for instance that you have a disagreement with your new friend and the relationship turns sour? That will affect the employer tremendously as the first friendly working environment has now turned hostile, making it unpleasant for all outsiders. More often than not, if the relationship is broken beyond repair, one of the parties decides to resign abruptly, resulting in the HR Manager’s day being complicated with looking for a replacement employee and counselling the remaining party, and the CEO seeking legal advice with regards to the effect that the now tarnished relationship has on his business and staff members.

Even though an employer cannot prohibit personal relationships, they are allowed to regulate it insofar as it is reasonable and lawful and does not amount to discrimination of any kind. If for instance the company’s rules with regards to the disclosing of personal relationships and the consequences thereof, is communicated to and known by the employee prior to the evolvement of the work relationship, it cannot be seen as discrimination of any kind as the employer has a standard practice of dealing with relationships of this nature.

A possible outcome would be to revise your company policies as an employer, or to disclose your relationship to your employer timeously. A hands-on approach is the best approach for the inevitable.

 

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“Is it dad’s turn to baby sit the kids again?” – society’s general approach to the so-called “hands-on father”. In a country where equality is enshrined in our Constitution and further the cornerstone to our great democracy, it is often these stereotypical comments that lead to the greater injustices in society. Our law has made many strides in gender equality including the promulgation of the Children’s Act giving effect to more equal rights between Mothers and Fathers and court decisions in favour of stay at home dads. Yet, we as individuals quickly revert back to gender specific roles of the mother as care-giver and the father as bread-winner. Should a Father cross that line, it is seen as an exception to this rule and often pointed out as exactly that. Should a Mother cross that line, she is seen as career-driven. South African Law has sadly not yet been able to meet the dividing line between these two parallels.

The first two years in the life of a child is a common focus area globally for early childhood development. Would it not therefore be in the interest of minor children and the general household that more attention be given to this specific part of South African law?

In terms of Section 27 of the Basic Conditions of Employment Act, a father may take Paternity Leave when his child is born, should the employee meet the necessary requirements. This is outlined under the heading: “Family responsibility leave”. It is important to note at this point that the Act only affords an employee three days of paid leave for this crucial period and worst of all, only three days for each annual cycle. These three days can be used for either the birth of a child, should a child be sick and/or the death of spouse or life partner. The Act fails to cater for the “career-driven” mother and the “hands-on” father.

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While maternity leave is offered in nearly all countries throughout the world, only 92 of the 196 nationalities offer paternity leave. Before considering the various advantages and disadvantages it is important to view how South Africa’s Paternity Leave holds up to other countries throughout the World:

Close to home – Africa:

Many fathers get no paternity leave at all. Kenya provides fathers two weeks and parts of West-Africa including Cameroon, Chad and Gabon allow 10 days Paternity Leave.

Asia and Pacific

Thailand, Pakistan, Malaysia and several others offer no paternity leave. Australia allows partners to share up to 52 weeks of unpaid leave, while Japan offers a year's unpaid leave to each parent. South Korea allows both parents partially paid parental leave for up to one year (52.6 weeks at 31% of pay).

America

The United States of America allow no paid parental leave; although a father may take a maximum of 12 weeks' unpaid parental leave.

Europe

Parents in Britain are able to share 12 months of leave after the birth of a child and in Sweden, parents receive 480 days' leave – including 390 at around 80% of their salary – for each child, with 60 days reserved for each parent and the remaining 360 shared as the couple choose. In Greece new fathers get paternity leave of two days and in Italy three months of paid leave. Many countries allow both parents to share as long as two years (France) or even three years (Spain) of unpaid leave. Some are more generous: Germany allows new parents to take up to 14 months of parental leave on 65% of their salary.

Larger Companies throughout the world

Virgin Management has extended the right to give employees up to a year of paid shared parental leave. Netflix has given a year of paid maternity and paternity leave to all employees.

Paternity leave is not only a societal and parenting issue, but it is a labour issue as well.

Wessel van den Berg of Sonke Gender Justice says: "Fathers are as biologically hard wired to provide care as mothers …fathers with close connections to their children live longer, have fewer health problems, and are more productive and generally happier."

According to recent studies, the involvement of fathers before, during and after the birth of a child, has been shown to benefit maternal health behaviours, encouraging women’s use of maternal and new born healthcare services, and increases fathers’ longer-term support and involvement in the lives of their children. It further will assist with the more career-driven woman, giving the household more flexibility when it comes to raising children.

It must be remembered that the lower taxes paid in South Africa as opposed to the Scandinavian countries, the unemployment rates and an economy less productive than it could be, all act as deterrents to an improvement in paternity leave. Experts have however further stated that if fathers were more involved in raising their children, it may result in reducing crime in the next generation, better school results in maths and science, a lower unemployment rate and a lower imprisonment rate. All major benefits to the economy overall.

Employers in South Africa are already burdened with all the leave available to employees and as a result of all the aforementioned issues, it would seem for the foreseeable future that Paternity Leave will remain a negotiation between employers and employees individually or collectively.

 

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Accidents regularly happens, at home and even at work. But what are you to do if you are injured at work whilst performing your normal duties? The Compensation for Occupational Injuries and Diseases Act1 (COIDA) regulates the procedure where employees are injured, disabled, fall ill or are even killed as a result of a workplace accident or work-related diseases.

The COIDA covers all employees, both casual and full-time workers. The act however excludes the following:

1. A total or partial disability lasting for less than 3 days;
2. Domestic workers;
3. Anyone receiving military training;
4. Members of the South African National Defence Force or the South African Police Service;
5. Any worker guilty of misconduct, unless they are seriously disabled or killed;
6. Anyone who was injured whilst employed outside the country borders for 12 or more continuous months; and
7. Workers who are mainly employed outside South Africa and who only temporarily work in South Africa.

The employer must register with the Compensation Commissioner (herein after Commissioner) and furnish them with the particulars of his business. The employer must also keep a register of the earnings and other prescribed particulars of all the employees for a period of at least four years.

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The procedure for lodging a claim with the Compensation Fund (herein after the Fund) is quite simple.

The employee has to report the accident to the employer within 12 months of the accident happening. Should it not be reported in time the claim will prescribe and the employee will not be able to receive compensation from the Fund.

The employer also has to report the accident to the Commissioner, if this does not happen the employee can fill in a Notice of Accident and Claim for Compensation and report the accident.

The employer should report the accident by filling in the Employer’s Report of an Accident. A copy of this document must also be furnished to the employee. This is to enable the employee to hand it to the doctor treating him. The doctor who treated the employee can also report the accident by sending the copy to the Commissioner. The Commissioner will then request the original from the employer.

• Once the employee has been treated the employer must obtain the First Medical Report, Progress Medical Report (if the employee is receiving prolonged medical treatment), and the Final Medical Report. The employee should assist the employer in obtaining these documents. The employee’s banking details should also be submitted to the Commissioner. The employer should submit the documents as they become available and should not wait for all the documentation before reporting the accident.

The employee must receive his/her normal salary whilst he / she is booked off. The Commissioner will refund the employer for the costs of paying the employee’s salary and any medical costs the employer paid.

The employee must remember that it is his/her case and therefore needs to be hands on in the process.

 

1Act 130 of 1993

 

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This newsletter 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.

 
April newsletter-01 Editor's-Letter Editor’s Letter

Welcome back! We hope you feel rested after the (brief) holidays.

For those of you who had some hardship without the luxury of a cruise ship, we will explore a few avenues to ensure that your next trip will be smooth sailing.

If you were in an accident or your car broke down over the holidays, this issue might be the roadside assistance you’ve been waiting for. Take a look at our article on insurance claims and repairs of your motor vehicle, as well as the article regarding your basic right to health care in crisis situations like these.

On a lighter note, why not surprise your significant other with a mystery trip to a country that does not require a visa? Have a look at our article: “Planning a surprise getaway? Holiday destinations without the hassle of paperwork” and broaden your horizons.

Bon voyage!

JJR Inc. Team

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Article-1

We all know how frustrating it can be to sort out the logistics when your car breaks down or when you have been in an accident, especially when you are on your way to enjoy a supposedly blissful and carefree holiday.

Luckily, at last your expensive monthly premiums for car insurance will come in handy and with just one phone call to your Insurer everything will be sorted out for you and a towing truck and assessor are on their way.

However, on arriving at the Repairer’s workshop with the courtesy car from your Insurer on the last day of your holiday, you see the once metallic silver car now sports a dull grey bonnet. You cannot stay another day or leave your car with this incompetent Repairer. Your once helpful Insurer has gone cold on you and is not in the slightest way as helpful as two weeks before. What do you do now?

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It is important to determine who has locus standi to take a Repairer to task for faulty repairs as well as who is liable to pay the Repairer.1

•    Most comprehensive policies provide that the Insurer has a choice: the Insurer can either pay for the Insured’s loss or damage, which will be the reasonable costs to repair; or at the Insurer’s expense reinstate the vehicle to its pre-accident condition.

•    If the Insurer elects to pay for the Insured’s loss, the legal position is that the Insured may appoint the Repairer and will consequently be responsible for paying the repair costs. In terms of the Consumer Protection Act, you (the Insured) will have in your personal capacity the right to take action against the Repairer if you are not satisfied with the repair. Your Insurer has no part in the dispute, and its only obligation is to pay you the costs of repairing the car. This payment will be made either directly to you or directly to the Repairer depending on the terms and conditions of your policy.

•    If the Insurer decides to reinstate your vehicle to its pre-accident condition the legal position is quite different. In this case the Insurer will appoint the Repairer and consequently be liable to pay the Repairer’s bill without creating an obligation between you and the Repairer apart from providing you with your vehicle once the repairs are done. In this scenario you will be able to seek remedy against your Insurer. It must however be pointed out that an assessor must do a competent check on your vehicle to prove that your vehicle’s condition is not what it used to be or ought to be. Therefore, in the absence of an agreement between an Insured and a Repairer, the Insured’s first port of call is to institute action against the Insurer, either by issuing a summons or by making use of alternative dispute resolution mechanisms such as the Ombudsman for Short-Term Insurance.

•    Some Insurers may mix-up the above two scenarios to create a ‘hybrid form’ of insurance. For instance, your Insurer may choose the Repairer, but doing so without reinstating your vehicle and consequently side-stepping any legal obligations towards the Repairer. In such a scenario, it can get quite tricky and for this reason, JJR Inc. recommends you seek expert advice with our team to assist you in making the best, informed decision.

•    Another gimmick you should be aware of is to sign a ‘Discharge Form’ when you take delivery of the vehicle. There is no legal obligation on you to sign a form that discharges the Insurer, or the Repairer, from all liability before you had reasonable opportunity to check the quality of the repairs. Should the Repairer refuse to hand over your vehicle unless you sign the ‘Discharge Form’ write next to your signature ‘UNDER PROTEST’. This will support an argument later that the only reason you signed was due to the refusal of giving back your property unless you did.

Although being in an accident over the holidays is not ideal, know your rights and remedies, and do not hesitate to call JJR Inc. should you be in doubt. We are here to help you every step of the way.

 

1 In Sandberg Transport BK t/a Sandberg v African Truck Accident Repairs the court emphasised that the only way to determine what the exact relationship is between the three parties (the Insured, the Insurer and the Repairer) and how to deal with such a situation, is a question of fact and consideration of the intention of the parties and the agreements between them.

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Road accidents are becoming a common occurrence. Heaven forbid that you are ever involved in a serious road accident, but if you are involved in even a light fender-bender you might have some comfort in at least knowing your rights to health care in such an unfortunate event.

Apart from the Constitution of the Republic of South Africa, 1996 (Act No. 109 of 1996), in Section 27 of same, guaranteeing our right of access to health care services, the Department of Health and the Health Professions Council of South Africa (HPCSA) are also achieving the realisation of this right through the National Patients’ Rights Charter. This Charter contains rules regarding professional conduct against which complaints of professional misconduct will be evaluated. It was launched by the Minister of Health and agreed to by the HPCSA in 2008.1

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The Constitution guarantees our right to access to healthcare, but what is relevant and important to know under these circumstances?

1.        The National Patients’ Rights Charter sets out what is included in this right, which are (amongst other) the
           following:

1.1    Receiving of timely emergency care at any health care facility that is open, irrespective of one’s ability to pay2;

1.2    Explaining of the consequences of the treatment and/or rehabilitation to be administered3; and

1.3    Provision for special needs with relation to new-borns, children, pregnant women, the elderly, patients in pain, disabled persons, persons living with HIV or AIDS4.

1.4   The person providing the health care service and assistance must be clearly identifiable, because one has the right to know who the person attending to one`s health care needs is.5

1.5   You have the right to be given the complete and precise information concerning proposed treatment and costs involved, on which to base informed consent6. That is if you are not incapacitated due to a serious accident in which case the Emergency Medical Practitioner must make a judgment call based on the circumstances and act accordingly. So, if you are at your wits, it is good to know that you will not be forced into any treatment or ambulance for that matter.

1.6   You have the right to a second opinion7. This may be applicable where more than one ambulance arrive on the scene.

1.7   You may even refuse treatment, either verbally or in writing8. If you decide to refuse treatment at an accident scene, because you are sure all is well and you intend to undergo a check-up at the GP, it must be noted that the particular health care practitioner will then request a Refusal of Treatment form to be signed. This is purely to indemnify them for any claims afterwards.

1.8   Remember, you do not have to wait for the health care insurance or medical aid scheme’s (the Scheme) preferred Emergency Medical Response (EMR) to arrive before treatment may commence, but you always have the right to refuse treatment before treatment commences. However, if treatment has commenced, the responsibility remains with that EMR for the continuity of care9, and you will not be abandoned by that EMR without inter alia appropriate hand-over.

2.        From the above, this Charter clearly gives one a better understanding of one`s rights when not only emergency
           health care is required, but also any other health care. It must be noted that the Charter also places
           responsibilities10 upon one as the patient, like (but not limited to):-

2.1    Taking care of one`s own health;

2.2    Respecting the rights of other patients and health care providers;

2.3    Utilising the health care system properly and not to abuse it.

In general, by arming yourself with knowledge, it might be further beneficial, if a member of a Scheme, to enquire whether they have a preferential EMR company, like ER24 or NETCARE 911 and can provide any other tips to assist in emergencies, such as road accidents.

In addition to the aforementioned information, consider the following before taking on the long road these holidays:

•    Keep the EMR number always close at hand – on speed dial or as a sticker in your motor vehicle’s window;

•    Get a basic first aid kit for the car;

•    Have your vehicle undergo a quick safety check at your nearest roadworthy test centre – these checks are charged for, but can you really put a price on your or your family’s safety?

Happy travels and be safe during the holidays.

 

1 http://www.hpcsa.co.za/downloads/conduct_ethics/rules/generic_ethical_rules/booklet_3_patients_rights_charter.pdf viewed on 09 March 2016 at 12:28pm.
2 Para 2.3 (a), p. 1 supra
3 Para 2.3 (b), p. 2 supra
4 Para 2.3 (c), p. 2 supra
5 Para 2.6, p. 2 supra
6 Para 2.8, p. 2, National Patient’s Right Charter:
http://www.hpcsa.co.za/downloads/conduct_ethics/rules/generic_ethical_rules/booklet_3_patients_rights_charter.pdf viewed on 09 March 2016 at 12:28 pm.
7 Para 2.10, p. 3, supra
8 Para 2.9, p.2 supra
9 Para 2.11, p. 3 supra
10 Para 3, p. 3 supra

Article-3

Every South African citizen is entitled to be issued with a South African passport in terms of the South African Passport and Travel Documents Act, 4 of 1994. Your passport allows you to travel to foreign destinations, but unfortunately your passport is not a golden access ticket to all countries across the world. Several countries require that visitors obtain visas before entering the country. There are no set requirements for visas, but each country differs with regard to the application process and requirements.

If you want to plan a surprise holiday for friends or family there are currently 97 countries or territories which are visa-free (or visa-on-arrival) destinations that South African citizens with a valid passport can enjoy. Most countries in Africa can be visited without a visa which include Benin, Botswana, Gabon, Kenya, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Saint Helena, Senegal, Seychelles, Swaziland, Zambia and Zimbabwe. A few countries in Africa require a visa on arrival which include Cape Verde, Comoros, Egypt, Ethiopia, Madagascar, Tanzania, Togo, Tunisia and Uganda.

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There are no countries in North America that can be visited without a visa but in Central and South America the list includes Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Brazil, British Virgin Islands, Cayman Islands, Chile, Colombia, Costa Rica, Dominica, Ecuador, El Salvador, Falkland Islands, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Montserrat, Nicaragua, Panama, Paraguay, Peru, Saint Lucia, Saint Vincent and Grenadines, Turks and Caicos Islands, Uruguay and Venezuela.

In Europe only Ireland, Kosovo and since 1 March 2014, South Africans no longer require visas to get into France's Reunion Island. In Asia: Georgia, Hong Kong, Macau, Malaysia, Maldives, Philippines, Singapore, and Thailand can be visited without a visa whereas Armenia, Bangladesh, Bahrain, Cambodia, Indonesia, Laos, Nepal, Sri Lanka, South Korea, and Timor-Leste all require a visa on arrival.

Lastly Israel, Jordan Cook Islands, Fiji, Federated states of Micronesia, Nauru, New Zealand, Niue, Palau, Samoa, Tuvalu, Vanuatu are all visa free destinations whereas Oman and Turkey both require visas on entry.

Although these countries offer the experience of foreign travel without the hassle of paperwork of applying for a visa, ordinary legal requirements still remain in place. Passports must be valid for at least 30 days after the intended date of departure and should also have at least two blank pages for entry stamps. If you intend to travel with children it is important to remember that all minors under the age of 18 years are required to produce, in addition to their passports, an unabridged birth certificate (showing the particulars of both parents) when exiting and entering South Africa. The Department of Home Affairs has however indicated that this requirement will change and minor children will be issued with passports containing the particulars of the parents, replacing the need for unabridged birth certificates. There is uncertainty as to when this will come into effect, and for the time being the requirement remains in place.

Happy traveling!

 
April newsletter-02
 

This newsletter 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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Imagine a country (Ané Kotzé)

Imagine a country
Where men and women ruled side by side
Where the only thing a child ran away from, is his friend in a game of hide and seek
Where the bare necessity is not to survive, but to enjoy life

Imagine a country
Where the only distinction between light and dark was that of night and day
Where the biggest fight is to accommodate sameness
Where similarity is sin, and diversity, triumph

Imagine a country
The same as the one that you are living in now
Where human rights are not a right, but a way of living

Imagine this country
Achieving what it is made to achieve by law and history
Imagine you. Making that happen.

We dedicate this issue to our country and its human rights, and you for making it happen.

Enjoy the read!
JJR Inc. Team

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1-Article

‘My bags are packed, I`m ready to go’ you sing… You imagine yourself at the top of the Eiffel Tower and can almost taste the bubbly on the Champs-Élysées when one phone call brings your daydream to a screeching halt and you are back on Stanza Bopape in Pretoria. You are informed that although you had passed the first four gruelling rounds, your application for your dream job as an air hostess, with the salary which was supposed to whisk you off to Paris, was not successful due to your HIV status. They mention something about the company’s HIV-testing employment policy.

Is an employer entitled to have an HIV-testing employment policy and can an employer discriminate against an employee on the basis of his / or her HIV status?

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There are three different categories of HIV-related discrimination at the workplace1, namely:

1. Discrimination while seeking employment;
2. Limited opportunities while employed; and
3. Dismissal from employment.

Discrimination in the first category will include cases where a prospective employer requires an HIV test before appointing or considering a potential employee for a position.

The Code of Good Practice2 issued in terms of the Employment Equity Act3 prohibits an employer to require an employee or an applicant for employment to undertake medical testing in order to ascertain the employee’s HIV status4. Employers may however approach the Labour Court to obtain authorisation for such testing5. The testing will only be granted if legislation permits or requires the testing or if the testing is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits, or the inherent requirements of a job6.

In a Constitutional Court case7 regarding pre-employment HIV-testing, the court had to decide whether an HIV-testing employment policy of South African Airways was justified. Mr. Hoffman applied for a position as cabin attendant at SAA, was selected as a suitable candidate for appointment (after a four-stage selection process), but at the end was rejected because of his HIV positive status.

SAA stated that in terms of their employment policy, no person who is HIV positive can work as a cabin attendant and further justified the policy on safety, medical and operational grounds. SAA asserted that its flight crew had to be fit to travel world-wide and must be vaccinated when flying to certain countries, with for instance yellow fever endemic. SAA proclaimed that HIV-positive people may react negatively to this vaccine and may therefore not take it. If they do not take the vaccination they will be at risk of contracting the yellow fever and also possibly transmitting it to fellow cabin crew members or passengers. It was further argued that HIV-positive persons are also prone to contracting opportunistic diseases, which can then also be transmitted to others, including passengers. If they were ill with these diseases they would not be able to perform all their duties, for instance emergency and safety procedures.8

The Constitutional Court found that, based on the medical evidence, an asymptomatic immunocompetent9 HIV-positive person could indeed perform the work of a cabin attendant completely and that any hazards to which an immunocompetent cabin attendant may be exposed to, could be managed by counselling, monitoring, vaccination and the administration of the appropriate antibiotic prophylaxis if necessary. The court further found that the risk to passengers and others are therefore inconsequential, and if necessary, well-established universal precautions can be utilised.10

The Constitutional Court found in favour of Mr. Hoffman and ruled that the refusal by SAA to employ Mr. Hoffman as a cabin attendant because he was HIV positive violated his right to equality, guaranteed by section 9 of the Constitution.11

Do not let anyone stand in the way of your dream job…remember you’ve got the Constitution on your side. “Paris, here I come!”

 

1 Southern African Litigation Centre (SALC) Litigation Manual Series, Equal rights for all: Litigating cases of HIV-related discrimination, 2011.
2 The Code of Good Practice on Key Aspects of HIV/AIDS and Employment is accessible at http://www.labourguide.co.za/general/387-code-of-good-practice-on-aspects-of-hivaids-employment
3 Act 55 of 1998.
4 Clause 7.1 of the Code of Good Practice.
5 Section 7 and 50(4) of the Employment Equity Act, 55 of 1998.
6 Section 7(1) of the Employment Equity Act, 55 of 1998.
7 Hoffmann v South African Airways 2001 SA 1 (CC).
8 Hoffman v South African Airways 2001 1 SA 1 (CC) para 7.
9 Asymptomatic immunocompetent stage: this stage follows the acute stage. During this stage the individual functions completely normally, and is unaware of any symptoms of the infection. The infection is clinically silent and the immune system is not yet materially affected.
10 Hoffman v South African Airways 2001 1 SA 1 (CC) para 15.
11 Hoffman v South African Airways 2001 1 SA 1 (CC) para 41.

2-Article

“Free expression is the base of human rights, the root of human nature and the mother of truth. To kill free speech is to insult human rights, to stifle human nature and to suppress truth.” Lui Xiaobo (Chinese writer, critic and philosopher)

Earlier the year we had the saga of Penny Sparrow who commented on social media with regards to the state the beaches of Durban was after the New Year celebrations and she alleged that it was because of “these monkeys”. She felt the backlash and there were people who felt she had incited hate speech. On the flip side of the coin, Gareth Cliff uttered on social media that we have a right to freedom of speech and his contract with Mnet was subsequently terminated.

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In the Constitution of South Africa, the right to freedom of expression is enshrined in section 16 of the Bill of Rights and reads as follows:
“(1) Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.”

But this is not an unqualified right and sub paragraph 2 of the same section qualifies it on the following manners:
“(2) The right in subsection (1) does not extend to—

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

Hate speech is not formally defined in our current legislation and we look to the Constitution, International Legislation as well as the he Promotion of Equality and Prevention of Unfair Discrimination for guidance. Section 10 of the so-called “Equality Act” reads as follows: “Subject to the provision in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to;
(a) Be hurtful;
(b) Be harmful or to incite harm;
(c) Promote or propagate hatred.”

In 2013 The Freedom of Expression Institute in association with the RAITH Foundation suggested the following definition of hate speech: “the concept of hate speech makes reference to speech that attacks the persons or group to whom it is targeted on the basis of “racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to cause harm” among other things.”

Currently in South Africa we are experiencing problems weighing up freedom of speech versus the right to be protected against hate speech. A balance needs to be found when exercising one’s right to freedom of speech, which sometimes will shock and offend, but that one does it in such a manner as not to incite hate speech.

There has not been sufficient case law on the matter of freedom of speech versus hate speech, but the leading case currently is Afri-Forum and Another v Malema2 where Justice Collin Lamont found that the controversial song sang by Julius Malema that translates to “shoot the Boer/farmer, shoot the Boers/farmers they are rapists” was hate speech regardless of the historic significance of the song.

Our legislation should be developed in this regard so that there can be clarity on hate speech and freedom of expression.

Should you feel that your human rights that are protected in the Bill of Rights have been infringed on, you can lay a complaint at the South African Human Rights commission who will then adjudicate on the matter. You can also further go the Equality Courts or even the High Courts of South Africa.

 

1 Act 4 of 2000
2 2011 (6) SA 240

3-Article

In order to be successful with a land claim, two sets of requirements are relevant: (1) a formal set and (2) a legal set of requirements. The first requires that no just and equitable compensation had already been paid and contains a cut-off date. The latter requires dispossession to have taken place after 19 June 1913 as a result of racially discriminatory law or practices. Then only can the basis upon which the claim has been brought, be considered. But what is a land claim?

Land Claim: A land claim is a written request made by a person, a direct descendant of a person, an estate or a community for the return of land, rights in land or other equitable redress that has been lodged with the Commission of Restitution of Land Rights in the prescribed manner. So, how can one lodge a claim?

Who may lodge a claim: A person or a community who was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices, and who did not receive just and equitable compensation at the time of dispossession, can claim for restitution of that right in land or equitable redress.

Basis of the claim: Section 2 of the Restitution of Land Rights Act (herein after referred to as “the Act”) provides for the basis upon which a person may be entitled to restitution of land.

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Section 2(1)(c):
From the Ex Parte Mayibuye: In Re Sub 121, Farm Trekboer1 it is clear that the legislature had no intention to include any other family member but these who expressly mentioned in the Act as being of direct decent of the initial possessor of the land in question.

Section 2(1)(d):
This section refers to the claim for land being brought on behalf of the “community

In Richtersveld Community v Alexkor2 the court held that individual members of the community are not allowed to institute land claims in their personal capacity or reject agreements made by the communal property association on behalf of its members. Further the court decided that there must be a group of persons who have rights to land, which are derived from shared rules determining access to land and which are held in common by the group.3

Racial Discrimination
The Constitutional Court in Pretoria City v Walker4 ruled that dispossession was based on “indirect racial discrimination”, yet the matter was dismissed as an additional requirement was not complied with, namely the inhabitants must be sufficiently civilised and the colonial government for this reason did not regard the land as terra nullius (no man’s land).

The recent Constitutional Court decision of Popela Community v Department of Land Affairs and Goedgelegen Tropical Fruits5 interpreted what racial discrimination in respect of a land claim means. The court found that a “reasonable connection” between the overarching grid of discriminatory laws and the resulting dispossession, would analogous with the legislature’s intention.

Suggested solution to an equitable outcome:
In the Florence v Government of the Republic of South-Africa6 case of 2014 the Constitutional Court found an equitable redress in the form of financial compensation, as well as the erection of a memorial plaque. A further R10 000.00 was awarded in recognition of the emotional hardship and trauma of a forced removal and in acknowledgement of the family’s dignity and worth.

 

1 1998 (4) All SA 604 (LCC) p. 612.
2 2001 (3) SA 129 at para 67.
3 Pienaar G. The meaning of the concept community in South African Land tenure legislation. STELL LR 2005 (1) p. 60 to 76.
4 1998 (2) SA 363 (CC) para 104.
5 Case number 50/00 CC.
6 2014 (10) BCLR 1137 (CC)

 
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This newsletter 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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St. Valentine’s grand romantic gesture to marry young couples who were otherwise prohibited from doing so, set the bar quite high for anyone trying to top what he achieved in the name of love.

If your grand romantic gesture is moving in together, asking someone to marry you or simply planning on jumping out of a helicopter with “I love you Mary” on your t-shirt or parachute, we’ve got your back.

In this issue, we take a look at the good the bad and the contracts.

Remember while you dive head first into love, your Cupid has a briefcase and an hourly tariff to keep you from falling too hard.

Enjoy the read

JJR INC Team

Article-1

Why is it so important to have an antenuptial contract? What is the buzz all about?

If you get married with no antenuptial contract signed between yourself and your prospective spouse, you will automatically be married in community of property. This means that should you or your spouse ever be declared insolvent, both spouses will automatically be insolvent as a marriage in community of property is considered as one joint estate.

Another disadvantage for not having an antenuptial contract means that should you ever purchase a property, it has to be registered in both parties’ names and the property will automatically fall in the joint estate. You will not be able to have sole ownership of a property. You will also not be able to enter into any credit agreement without your spouse co-signing the agreement.

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Therefore, it is very wise to go and see your attorney before getting married. Your attorney will explain to you the differences between a marriage out of community of property and a marriage out of community of property with the application of the accrual system.

The following are some of the benefits, only to name a few, of having a registered antenuptial contract:

• If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
• The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;
• Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
• Spouses will not need to obtain each other’s consent when dealing with their own property.

Very important! You must sign your antenuptial contract before you get married. Ensure that you receive notification from your attorney that your antenuptial contract was lodged and registered in the deeds office after you have signed the antenuptial contract. It is an essential requirement that the antenuptial contract be lodged and registered in the deeds office within three months of signature thereof in front of your attorney. If this is not done, you will also automatically be married in community of property.

 
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"You can't put a price tag on love. But if you could, wait for it to go on sale."Hussein Nishah,

I hasten to add: “or just rent it in the meantime.” This is just how we are wired. We want the best, we want it cheap and we want it now! And hell breaks loose if anyone tries to interfere.

It’s that time of the year when you or the ones you love may be looking for a new home. Should you be in the rental market, here are a few important knots to make in your ear, before signing on the dotted line.

No discrimination may take place during either the advertising or negotiation phases. It is interesting to note that the Rental Housing Act (herein after RHA) refers particularly to age in section 4(1). Strictly speaking an advertisement can therefore not state that students need not apply or that the residence is only intended for the elderly. This can however be circumvented by simply refusing the potential tenant on another basis.

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The next few rules are, however set in stone, and cannot be waived by either a landlord or tenant:

1. Section 5(3)(d) of the RHA states that the deposit, paid to the landlord to secure the residence, must be invested against an interest rate equal to a savings account. Furthermore, at the end of the lease the initial investment and the interest there upon, must be paid to the tenant, should there be no deductions for damages. The wording of the section leaves no room for interpretation, thus the meaning is clear and concise, the deposit must be invested! No landlord may, for any reason, deny the tenant the right to have the deposit invested and must provide the tenant with proof of the investment, should the tenant request this.

2. A joint inspection by both tenant and landlord, at a time which is convenient for both parties within three (3) days prior to expiration of the lease, must take place. Should the landlord fail do to this inspection, section 5(3)(j) of the RHA provides the tenant with the right to claim his or her full deposit, including the interest, as the landlord has tacitly deemed the residence to be in a good and proper state and has no further claim against the tenant. On this note, should there be no deduction applicable, the deposit and interest must be paid to the tenant within seven (7) days of the lease’s expiration. Should there be deductions, the full amount after deductions, but including interest, must be paid to the tenant within twenty-one (21) days of the expiration of the lease.

3. The landlord is however not without remedy. An interesting provision of the RHA is that a landlord may claim compensation for improvements on the land on which the dwelling is situated, if damage caused by the tenant necessitated said improvement, according to section 4(5)(e) of the RHA.

Lastly, should you or a loved one ever experience any difficulties with a tenant or landlord, it must be noted that the RHA provides for a Rental Housing Tribunal, which can settle all rental matters quickly and cheaply. The legal processes of the Tribunal are less complex than those of the courts and also have a swifter turn-around-time.

Ultimately the old saying still rings true, especially in the rental market, “I don't understand this irony - valuable things like cars, gold, diamonds are made up of hard materials but most valuable things like money, contracts and books are made up of soft paper.” ― Amit Kalantri. Thus my advice would be: grab those reading glasses and go through your contract with a fine-tooth comb, who knows, you might have some interest coming your way!

 
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You open the front door to your house and there it is – a paradise filled with hundreds of roses, a human size teddy bear, hearts sprinkled all across your front porch, a harpist in the corner playing the soft tunes of Ronan Keating’s You say it best when you say nothing at all (oh the irony), and all that you can think of is how much time it’s gonna take for you to clean up the porch, get the harpist to stop playing and fit the teddy bear through the door so your neighbours has nothing to gossip about.

Even though Valentines Day is seen as one of the most favourable holidays of the year, some of you might have a stalker or two on your hands that you can’t seem to get rid of. This bears the question – how can you get rid of someone who is invading your space and infiltrating your life, without using a spade to hit them over the head?

The Protection from Harassment Act (17 of 2011) makes way to ensure that a victim has immediate relief against harassment. The question remains however, what is harassment? Is your admirer harassing you or is he / she just being kind?

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Harassment can include any of the following acts: unreasonable written, verbal and / or electronic communication, the unreasonable watching, pursuing or following a person, the lurking outside of a building where a person works, studies, happens to be or lives, (sounds like this is applicable to your secret stalker, or admirer… doesn’t it?), bullying, harassment of a sexual nature, etc.

Now that you have identified the conduct as harassment or possible harassment, what can you do?

The Magistrate’s Court makes way for you to obtain a Protection Order against the perpetrator who is harassing you. The Protection Order is seen as a Court Order and lists specific acts which the perpetrator may not commit. Protection Orders can be enforced by the South African Police Services and non-compliance thereof may lead to criminal prosecution.

If a Protection Order is granted, the Protection Order will be accompanied by a Warrant of Arrest. The Warrant can then be executed at any time if the perpetrator fails to obey the Protection Order. You as the victim can therefore hand in the Protection Order together with the Warrant of Arrest at the nearest SAPS, who will then enforce the Protection Order. A Protection Order is valid for a period of 5 years.

But what if you don’t know who the secret admirer is who is harassing you? Can you still obtain a Protection Order? The answer is yes. The Court will bear all the circumstances in mind when making such an Order. If for instance, the harassment is taking place in the form of electronic mail, the Court can make an Order to prohibit the service provider from allowing communication to be forwarded by the perpetrator to you as the victim.

So if you were afraid of being harassed this Valentines Day, remember that you have options and the law on your side. You don’t have to tolerate endless mixtapes and telephone calls asking you what you are wearing and if you are available tonight. Be smart, get a Protection Order.

Consult with your lawyer about the process involved in obtaining a Protection Order or an Interim Order.

 
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This newsletter 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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Dear All

We hope that you enjoyed the festive season with your family and friends, and that you are excited and ready for the year to come!

May your year be filled with new beginnings and may you also inspire new beginnings for others.

We look forward to new beginnings and new partnerships with you.

JJR Inc. Team

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In this day and age more unmarried couples are opting to live together, be it before marriage or instead of it. The majority of them live under the illusion that they will automatically enjoy the same legal protection as married couples; that if they stay together long enough they will in the eyes of the law be seen to have entered into a common law marriage.

This is unfortunately not the case. Unlike a marriage or a civil union, cohabitation is not regulated by legislation. The legislator did see that there was a need for change, and in 2008 the Domestic Partnership Bill was drafted, but sadly has not been given the green light. In accordance with this bill partners would have enjoyed equality and dignity as set out in the Constitution.

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Currently, cohabiting partners are at risk should the relationship end. If one of the partners pass away the remaining partner will not be able to inherit if the deceased partner died without a valid testament. The long-living partner will also not be able to rely on the Maintenance of Surviving Spouse Act. There is also no obligation on either of the partners to pay maintenance to the other during the relationship, therefore neither of the partners will be able to claim maintenance after the relationship. The partner in whose name the assets and property is registered will be the one to keep same and there is no obligation on them to share or distribute it.

Partners living together can enter into a cohabitation or life partner agreement. Such an agreement will be legally enforceable and binding as long as it adheres to the requirements of a normal contract, for instance both parties must have consensus and the contract cannot include anything illegal. In this agreement partners can regulate the obligations they will have towards one another as well as the consequences should the relationship come to an end. Each one of these agreements will differ depending on the unique needs and situation of every couple, but below are some points to ponder and include:

1. The home you share;
2. The movable property brought into the relationship and acquisition of same;
3. Termination of the relationship;
4. Maintenance in the case of termination;
5. The cost of running the household.

Until the above mentioned bill is promulgated, one of these agreements is the best way to protect your assets and save you a lot of court room drama and costs, even though it does not seem very romantic.

 

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The Festive season, filled with joy and sheer childlike anticipation to open the presents underneath the Christmas tree; anticipation that suddenly disappears when you first glance at the pink rabbit fur poncho which your aunt has given to you, horror quickly stifled by a thank you and an award winning smile.

With the Festive season gone, you and your pink rabbit fur poncho seem to be stuck together. Alas there is some hope, as many stores do take returns for those unwanted gifts, but stating that it is your legal right to return the poncho, might however be stretching the truth…

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The Consumer Protection Act 68 of 2008 (“CPA”) was enacted to, amongst others, promote and ensure consumer protection from unfair marketing practices. The fact that your aunt has limited knowledge of fashion (or your taste) and that suppliers should in general not be manufacturing rabbit fur ponchos, cannot however be considered an unfair marketing practice. There is no general right of return but the CPA does provide for instances where goods can be returned.

Firstly, section 16 of the CPA specifically provides for a consumer’s right to a cooling-off period after direct marketing. The consumer may within 5 business days after the transaction or the goods were delivered rescind, or cancel, the transaction. The supplier must in terms of the section return the payment within 15 business days.

Secondly, section 20 (read with section 19) deals with a consumer’s rights to return goods which extend to four specific circumstances, including:

• Goods bought as a result of direct marketing;
• Goods which the consumer could not inspect before delivery and which is rejected for reasons listed in section 19(5) including that the goods are not the type or quality reasonably contemplated in the agreement ;
• Goods were delivered mixed with other goods which were refused;
• Goods that do not satisfy the particular purpose for which they were bought if that purpose was communicated to the supplier.

What rights do you have as a consumer?

The right to return in terms of section 20 is only available for a period of 10 days. The section does not apply in instances where public health prohibits the return, or where the consumer has physically altered, or combined the goods with other goods or property.

Section 20 should be read with section 55, in particular section 55(3) dealing with goods that must satisfy a particular purpose as well as section 56 which deals with an implied warranty of quality.

A consumer may within 6 months after the delivery of any goods to a consumer return the goods if it fails to satisfy the requirement and standards in section 55 of the CPA.

In the case of online stores the Electronic Communications and Transactions Act (ECTA) will be applicable, providing a 7 day cooling off period after the delivery of the goods. All stores must ensure that their return policy is in line with the CPA and ECTA (in the case of online stores). Consumers must also be weary that goods cannot always be returned any time and under any and all circumstances, sometimes the pink fur rabbit poncho will continue to act as a souvenir of Christmas 2015…

 
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This newsletter 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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The festive season is upon us and the end of the year is in sight. From all of us here at JJR Inc. Attorneys, we would like to wish you a season of sparkle and shine. May all your wishes and dreams come true and may you, during this season of giving, take the time to slow down and enjoy the simple things.

In this newsletter we take a look at how to handle noisy neighbours this December holiday and also what to look out for to protect your rights when you visit an amusement park over the holidays.

We thank you for your support during the year and wish you all the best for 2016.

JJR Inc. Team

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As the festive season draws near, everyone is preparing for a time where families and friends get together in celebration. But what we often forget is how our festivities impair and infringe on our neighbours’ rights. But it may also occur, that we are on the receiving end of noisy neighbours. These competing interests are governed by an area of our law known as “neighbour law” and more specifically the branch thereof dealing with nuisance.

A good starting point is the premise in common law that allows everyone the undisturbed use and enjoyment of their own land as long as they comply with legislation, regulations and by-laws concerning their land.

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We first need to draw a distinction between the two types of noises that exist in our law.

First we have “Disturbing Noise”. This noise is measured objectively and is defined as a scientifically measurable noise level. This is your general noise you would find at a party. This noise is often regulated by municipal by-laws and is often the rules/law that we are aware of. The quickest remedy is often a call to your local Police Station. Should this noise however, persist this disturbing noise could become a noise nuisance.

“Noise Nuisance” is a subjective measure of noise and defined in the Nosie Control Regulations of Gauteng, 1999 as any noise that disturbs or impairs, or may disturb or impair the convenience or peace of any person. This type of noise is governed mainly by the Environmental Conservation Act, 1989 (Act 73 of 1989) and the Noise Control Regulations governing your specific province. A comprehensive list of noises that are considered as Noise Nuisance can be found in the aforementioned regulations. They include, but are not limited to, loud music from a radio or a musical instrument, noise from an animal, noise emanating from fireworks, noise from construction work etc.

Transgressions of the provisions in the Regulations are considered a criminal offence. The penalty attached to the transgression is that the accused can be fined up to R 20,000.00 or imprisoned for up to 2 years, or both, if found guilty or admits guilt. Note that it will result in the accused having a criminal record.

A person whose convenience or peace is disturbed may lodge a complaint with the relevant Department. An official from the Department will issue a statutory notice and same will be delivered to the person disturbing your peace or convenience. Failure by the person creating the noise nuisance to comply with the statutory notice could result in criminal action. This notice is often the first step in instituting legal action.

It must be remembered that in order to show that a noise nuisance does in fact exist it must be proved that the certain noise was intolerable or seriously affected your enjoyment of your property.

Should the above remedy fail, and the person continues to cause a nuisance, one could approach the court and apply for an interdict. The Courts in considering such an application will consider the following:

• Type of noise
• Degree of persistence
• Where the noise occurred
• Time when noise is heard
• Efforts made to resolve the matter.

It must be noted that this article only acts as a mere guideline and each case must be examined on its own merits. It is for this reason that it is often best to consult with a legal representative on what is the best way forward. Should you require further information or alternatively wish to enforce your right to a peaceful festive season, kindly contact our offices to arrange your consultation.

 
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Are you planning on visiting an amusement or waterpark this December Holiday? Or going on some kind of adventure tour? Read before you sign an indemnity and be inquisitive if something does not look right.

At amusement parks there are usually disclaimer notices next to the ticket offices, excluding liability for negligence on the part of the park owner. The person making use of the services / rides will be bound by the disclaimer / exemption clause if the below requirements (some of which are also prescribed by the Consumer Protection Act1) are met:

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1. The consumer must be aware of the disclaimer;
2. If the consumer was not aware of the disclaimer, he or she will still be bound by it if it was so visibly displayed that it can be assumed that he or she must have been aware of it;
3. For the disclaimer to be noticeable it must be more or less on eye level; in big enough writing and in a place that such a sign would usually be found or where it would attract the attention of an ordinarily alert consumer;
4. The notice must be expressed in plain language;
5. The consumer must be alerted to the notice before he or she enters into the contract or before he or she is expected to pay for the goods or services in question, whichever happens first.
6. The consumer must be given sufficient opportunity to understand the content of the notice.

Although an indemnity or a disclaimer notice does not necessarily take away your right to sue, there are previous case law2 leaning towards exactly that. In the Botha-case, Mrs Botha and her daughter were flung from a ride in the park after a freak mechanical failure occurred. The court dismissed the claim and held that Mrs Botha could not sue the park as she indemnified the park against any liability. Although Mrs Botha could not recall that she saw the disclaimer notice (“…they are absolutely unable to accept liability or responsibility for injury or damage of any nature whatsoever…”) she should have been aware of such notice. The court found that the notice was prominently displayed at a place where one would ordinarily expect to find such a notice and that any reasonable person approaching the ticket office could hardly have failed to observe the notices; and that the existence of such a notice would not be unexpected by a reasonable patron. The court ruled that Mrs Botha therefore should have seen the notice when she bought the tickets and could therefore not sue the park for injuries sustained.

An exemption clause is usually strictly construed and thus if the wording permits such an interpretation for exemption to the giver of the notice it will be from the least degree of blameworthiness, which is ordinary negligence and not gross negligence. For instance if you buy tickets for a ride after exempting the park (agreeing not to sue for any loss, harm or injury) but the operator of the specific ride did not fasten the seatbelts before he started the ride and you consequently fly out of the ride and sustain serious injuries, it will be unfair to say one is not allowed to sue as these actions come down to gross negligence. Indemnities do not take away one’s responsibilities as the giver of the indemnity towards the person indemnifying the giver, it will only make your case as owner / organiser stronger and it does not automatically take away the injured party’s right to sue. The injured party will however still need to prove the degree of negligence on behalf of the park owner.

So think twice before you buy tickets at an amusement park and make sure that there is a notice board that is visible / within eye-level and that you understand the content of the disclaimer.

 

1Act 68 of 2008

2Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA)

 
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This newsletter 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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It is the month of “Movember”. A month dedicated to a cause instituted to create awareness and urge men to get tested for prostate cancer. Men (and women at times) all over the world partake in this cause, leading to upper lip hair growth.

So have you started growing your moustache? Are you keen to participate, but you are worried you might get into trouble with your boss? In this Newsletter we will discuss whether an Employer may discriminate against an employee and withhold him to exercise his right to grow facial hair in accordance with his cultural or religious beliefs.

We further give some guidelines and advice on fixtures and fittings onto property, for those of you who are thinking of selling your house, restaurant or bar and wondering whether you may take everything with you…

Enjoy the read!

JJR INC Team

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The month of November is known internationally as “Movember” – a cause instituted to create awareness and urge men to get tested for prostate cancer. Men (and women at times) all over the world partake in this cause, leading to upper lip hair growth supposedly showing manliness.

The question arose however, ‘can I be dismissed for growing a moustache if the moustache does not correlate with my company’s image?’. Men and women alike dream of making radical changes to their appearance all the time, yet most people in a professional area of work are cautious when considering such a drastic change. Which bear(d)s us with the question: May I grow a moustache this Movember? We moustache(sk) the labour laws this question.

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The Employment Equity Act 55 of 1999 as amended (EEA) provides protection against any employee by prohibiting unfair discrimination in the workplace. This basically boils down to the fact that no person may discriminate against an employee based on their race, gender, sex, pregnancy status, belief, political opinion, culture, etc. The question is, will a radical change in your physical appearance provide your employer with some kind of a remedy and a reason to dismiss you or to force you to change your physical appearance to what may or may not be a better fit for the company?

In some cultures and religions, growing a beard and or a moustache is a requirement to show for example marital status and in some instances even social standing. Our democratic state and the Constitution allows the citizens of South Africa to engage and practice their culture and beliefs insofar as it is compatible with the Constitution and other relevant laws to do so, and insofar as it is deemed to be both reasonable and fair. Withholding an employee of exercising his right to grow facial hair in accordance with his cultural or religious beliefs is therefore seen as unfair discrimination under Section 6(2)(b) of the EEA read together with Section 9(3) of the Constitution of South Africa.

The legislature states however that it is not unfair discrimination to “distinguish, exclude or prefer any person on the basis of an inherent requirement of a job”.1 Which raises the question: “Is a society based ‘neat and cleaned up look’ an absolute requirement or even an inherent requirement of a job?”

Does your physical appearance have an influence on your competence to do certain tasks and / or does it influence your qualifications and your ability to perform duties? No. It most certainly does not. However, an employer is faced with client preferences and good quality service, a culture that is sometimes undeniable and is a factor when determining company growth and target groups.

Stereotyping and judgement will always be factors that will in some cases even distinguish one possible candidate for a job from another. Fortunately however, when regard is being had to the provisions of the EEA and the Constitution, it appears as if you cannot be discriminated against based on your physical appearance. Unfortunately, we cannot prohibit people from exercising their right to form their own opinions about others (where the opinion is kept to themselves and does not have a negative impact another person).

So if you still haven’t started with that moustache or beard, get to it. Not even your boss can stand in your way. Unfortunately, we can’t necessarily say the same about your significant other.

 

1 Section 6(2)(b) of the EEA

 
Fixtures-and-Fittings-

Often during the course of the sale of a property, the question arises, whether or not something is a fixture or fitting onto the property. A good example can be Bar Stools. May you, as the Seller remove your Bar Stools from the property and use it in your new home?

This question has been cleared up by the Court 1 and a few guidelines were established:

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1. Does the object have the character of being part of the immovable property?
2. Has the object been attached by a physical connection?;
3. Was it the intention that the object should remain permanently attached to the immovable property?

The third factor is the most important factor to consider when making a final conclusion.

If we look at the Bar Stool example, it was decided by the court 2 that if the item is necessary for the effective use and utilization of the immovable item (the bar itself) then it cannot be removed. The Bar Stools obviously has the character of being part of the bar and although the barstools are not physically attached to the Bar, the Bar would not function properly if there are no stools. It is the intention of Bar Stools to serve the bar.

To avoid any disputes between the seller and the purchaser arising during the course of the transfer procedure, the starting point would be that the seller specify in the offer to purchase what items are to be excluded as a fixture and a fitting. This will ensure that there is clarity as well as an agreement between the parties beforehand and avoiding a situation where the seller removes certain items from the property.

 

1 MacDonald Ltd v Radin NO and The Potchefstroom Dairies and Industries Co Ltd 1915 AD & The Potchefstroom Dairies & Industries Co. Ltd., S.A.I.R. (1915) AD 454 EEA

2 Senekal v Roodt 1983 (2) SA 602 (T) at 609D-H

 
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This newsletter 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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Dear reader

This month’s theme is claims. In this newsletter we will discuss different contractual and delictual claims that are becoming more relevant these days.

Medical negligence and Road Accident Fund claims are two areas of the law that is on everyone’s lips.

Medical negligence claims are going through the roof. Statistics show that medical negligence claims have increased with approximately 250% in the last five years.

Road Accident Fund claims on the other hand are still relevant and claims have escalated due to the process being simplified and the middleman being cut off. Individuals can claim from the fund directly without the assistance of an attorney. The role of an attorney in these claims is however still an absolute necessity when proving merits and quantum and ensuring that an optimal amount is claimed and obtained from the fund.

Have you heard? Your insurer cannot refuse to pay out a claim on the basis that you haven’t disclosed every scratch or ding on your vehicle. This article is a must read for all insured motor vehicle owners.

Enjoy the read!

JJR INC TEAM

Wrongful-Pregnancy

The sanctity of life argument has (as per the Honourouble Judge Louw in the Stewart v Botha case) eroded in many instances. In the event that the mother of an unborn child is informed that her child will suffer from a serious medical condition or congenital disability she has the right to terminate the pregnancy. What happens if the medical practitioner fails to assess the high risk of abnormality in the foetus?

Firstly it is important to understand the different claims that can occur with regard to pregnancy and birth. In the Friedman v Glicksman case the difference between wrongful pregnancy, wrongful birth and wrongful life was defined. Wrongful pregnancy refers to cases where a healthy (or unhealthy) child is born and the parents institute a claim for damages they suffered as a result of giving birth to an unwanted child. This claim typically arises where a sterilization procedure was performed incorrectly. Wrongful birth refers to claims by parents who state that they would have terminated the pregnancy had they been properly advised of the birth defects/ the congenital disability. Lastly wrongful life claims are brought by the child on the basis that the doctor’s negligence has caused the birth of the disabled child and as a result pain and suffering is attributable to the life.

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The claim for wrongful pregnancy and wrongful birth have both been recognised in South African law and is governed by common law principles. Claims can be based in either contract or delict. The parent seeking damages in a wrongful pregnancy or birth actions must prove that there was (1) a patient-doctor relationship between the parents of the child and the medical practitioner; (2) the breach by the medical practitioner of his or her obligations in terms of the agreement and/or negligent failure to perform a sterilisation procedure or to disclose to the prospective parents the risk of having a child with genetic or congenital disease; (3) the parents suffered harm or damages and (4) that the medical practitioner’s breach of agreement or negligent conduct caused the harm.

The damages claim in the case of wrongful life, however, differs. A potential wrongful life claim can only be based on delict and in the Friedman case it was held that there can be no claim of wrongful life as the doctor owes no duty to the child to give the child’s mother an opportunity to terminate the pregnancy, and it is impossible to calculate damages, being the difference between an impaired life and no life. In the recent Constitutional Court judgment of H v Fetal Assessment Centre the Court has referred the case back to the High Court to consider the delictual claim of wrongful life. It remains to be seen whether the Courts will develop the common law in order to include the claim for wrongful life.

Wrongful birth and wrongful pregnancy claims evokes many moral debates and parents who are considering instituting claims need to consider not only the legal requirements but also the psychological impact it can have on a family. A claim based on wrongful pregnancy could for example be considered to negatively affect the child if the child thinks that he or she is an unwanted mistake. Instituting a claim for wrongful birth and wrongful pregnancy is available to parents and can assist them with the financial burdens and losses, but the decision to institute the claim should not be entered into lightly.

 
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Imagine you pop into the shop quick to buy the necessities. You emerge, and low and behold someone scratched your beloved vehicle. There is no one around and you do not know who did it. Your mind quickly jumps to the inevitable, should we inform the insurance company about this? And if your insurance company offers you a reward for not claiming, as quite a few nowadays do, will this adversely affect it? If you do not inform your insurance company about this incident, will it affect any future claims that you might lodge with them?

Recently, a full bench of judges in the High Court, Kwazulu-Natal Division decided on just this.1 In this matter the insured claimed for damages suffered to his vehicle because of a collision that amounted to just over the R 600,000-00. His insurance company investigated the incident and when he was interviewed by an insurance investigator with regards to previous incidents he was involved in, two previous unreported incidents came to light. The insured paid for the repair of the damages himself in both incidents. One of the incidents involved a third party and the insured paid for his damages to be repaired as well. Therefore, instead of standing the chance to lose his “reward” the insured rather opted to absorb the damages to his own vehicle and that of the third party. His insurance company repudiated the latest claim due to the non-disclosure of his previous incidents.

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The Court mentioned that this particular insurance company “rewarded” their clients for not claiming. This was one of the reasons stated by the insured why he did not lodge a claim for either of the previous unreported claims. Furthermore, he also thought that the damages suffered in both incidents would have been less than his excess payment. In one of the incidents the insured thought that the damages would be less than his excess. When he found out that the damages would far exceed his excess, it was too late to lodge a claim in accordance with his insurance policy that stated that a claim or any incident that can lead to a claim by a third party has to be reported to the insurance company immediately or no later than 30 days after said incident.

The court found that the obligation to report a claim or incident only arises if the insured wishes to be covered for the loss by their insurer and that it would be in bad law to repudiate the latest claim because of the non-disclosure of the previous incidents.

The implication that this judgement has on consumers is that if they do not want their insurance to cover them or be covered for third party liability for a specific incident they do not have to inform their insurance company of every little ding and scratch and the insurance company cannot then repudiate future claims because of it. Consumers should read their insurance policies very carefully before they sign it, and make sure that they stick stringently to the provisions in it. Even if they state to be in plain language, always make sure that you understand each and every provision.

 

1 Jerrier v Outsurance Insurance Company Limited (AR 4160/2010) [2015] ZAKZPHC 34

 
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In light of the recent deliberations and accusations of attorneys working on a contingency fee basis and the repercussions thereof, clients are more careful when entering into fee agreements with attorneys.

The information programme, Carte Blanche, also made waves for all attorneys out there wishing to engage in contingency fee agreements with clients. The question remains however, what is the right choice for you as a client? Is legal representation detrimental in RAF claims?

Is it common cause that lodging a claim at the Road Accident Fund can be done by the claimant in his / her personal capacity without any legal representation. Other avenues can also be pursued, i.e. claiming through an attorney or visiting the Courts to assist with the determination of the amount of damages claimed by using expert witnesses and eyewitnesses to contend as to why the claimant’s claim must be successful.

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The following is required to lodge a claim at the Road Accident Fund:

1. RAF 1 / Form 1 has to be completed (this form sets out the particulars of the vehicle, the basic information of the parties in the collision, etc.)

2. An affidavit must accompany the RAF 1 / Form 1, which sets out the following:

a. Full particulars of the accident;
b. Statements of witnesses;
c. Police reports;
d. Hospital and medical records;
e. Vouchers and documents in support of amounts claimed.

3. RAF 3 / Form 3 to be completed by the drivers involved in the collision.

4. In the event that general damages are claimed, a RAF 4 has to be lodged (Serious Injury Assessment Report).

Even though claiming through the Fund directly remains a viable option for a prospective claimant, it has to be noted that the intervention of an attorney and the courts can assist with bringing the matter to finalization and to prove damages more effectively than lodging the claim at the Fund directly.

The only thing standing in the way of a client seeking legal representation can or may be that it may be a costly exercise, especially when regard is being had to the fact that High Court litigation may take up to 3 years to reach finalization.

The Contingency Fee Act, 1997 permits that a contingency fee of 25% is permissible for work done, specifically for RAF cases. This Contingency Fee Agreement therefore allows that an attorney be paid an amount equal to 25% of the total amount claimed, upon the finalization of the matter. Contingency Fee Agreements therefore works on a “no win, no fee” basis, ensuring that the client gets the required assistance by not placing a financial burden on the client’s shoulders whilst the client is dealing with recovery from his / her injuries.

How can you make sure that a Contingency Fee Agreement is in line with the Contingency Fee Act and is legal and binding?

1. The agreement must be in writing and signed by both the client and the attorney, and where applicable, by the advocate appointed;

2. The agreement must state the proceedings to which this agreement relates and must state that, prior to the agreement being entered into, the client:

• Was advised of any other alternatives of financing the litigation;
• Was informed that in the event that he / she is unsuccessful in the proceedings, that he / she might be held liable for costs on a party and party scale to be paid to his / her opponent in the proceedings;
• Was informed that he / she will also be held liable to pay the success fee in the event of success;
• Understood the meaning and terms and conditions of the agreement.

3. What will be regarded by the parties as success or partial success and the circumstances under which the attorney’s fees and disbursements pertaining to the matter are payable;

4. The amount which will be due, the consequences which will follow in the event of partial success and in the event of premature termination of the agreement;

5. The amounts payable or the method used when calculating the amounts payable;

6. The manner by which disbursements incurred by the attorney will be dealt with;

7. That the client will be afforded the opportunity to withdraw from the agreement within a period of 14 days, calculated from the date of the agreement, provided that the attorney will be entitled to payment of any fees and disbursements incurred to date, calculated on an attorney and client basis;

8. The manner in which any proposed amendments to the agreement will be dealt with;

9. A copy of the agreement shall be delivered to the client on the date on which the agreement is signed.

It is therefore quite pertinent to note that legal representation will assist in finalizing a RAF claim expeditiously, and entering into a Contingency Fee Agreement, when such agreement is in line with the Act, can be beneficial to a prospective claimant to ensure that you get the assistance you require.

 
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This newsletter 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.

 

Header Banner dfsg I am every woman

Most people postpone the drafting of a will. It is understandable, because most people do not like to think about death. But death is inevitable, and when it comes will your loved ones be taken care of?

Don’t postpone. Select the recipients of your estate today or the laws of intestate succession will select it for you...

In this Newsletter we will be looking at the importance of a will as well as the requirements and formalities of a valid will.

Enjoy the read and contact us when you are ready to take the next step!

"Death is inevitable. Life is inevitable too. However, the timing is somewhat flexible."
- Amelia Mysko

Plan-Your-Estate-Banner

One of life’s utmost certainties is death. It is never too early to start thinking of a will to protect your current and future loved ones. A will ensures that one does not place a burden on the ones left behind. It further ensures that all of your assets will be distributed amongst your heirs according to your wishes, and gives you the opportunity to nominate a reliable person as your executor that will make sure that your loved ones are taken care of after your death.

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The following issues should be borne in mind when drafting a will:

  • • Who the executor should be;
  • • Creating of a trust to support your spouse and children;
  • • How your liabilities will be covered;
  • • Guardianship for the minor children (if applicable);
  • • How to approach tax (and not to avoid it);
  • • Who your beneficiaries should be;
  • • To indicate whether you are an organ donor or not;
  • • Specific provisions for important medical decisions (i.e. under which circumstances life support should be terminated).

It should be noted that once a will has been drafted it should be revisited on a regular basis due to the possible change of beneficiaries, in the event of divorce or death, a change in your financial position, or in the case of nominating another executor.

A will should not be seen as the deceased ruling from the grave, but rather as a way for the deceased to ensure that loved ones are taken care of in the future; that a reliable person as executor will fulfill the wishes of the deceased; that any debts are taken care of rather than it lurking like dark shadows over the ones left behind. It also makes the administration process of the estate a lot easier for the executor and it prevents the estate from falling under the laws of intestate succession.

So make an appointment today to see one of our legal experts to ensure that all the factors mentioned herein are covered, that your loved ones are taken care of and that your wishes be fulfilled…sooner rather than later.

 

Do-I-have-a-valid-will

It is very important to know that your will has to comply with a few formal basic requirements in order for it to be valid 1. If the will is found to be invalid, the Intestate Succession Act 2 will come into operation and the assets are distributed in a definite order of preference among the heirs. In order to ensure that your belongings are distributed to the ones your love; make sure that your will meets the following formal requirements:

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1. The will must be signed at the end thereof by the testator;

2. The signature must be made by the testator himself;

3. The testator must make his signature in the presence of at least two competent (older than fourteen years) witnesses;

4. The testator and witnesses must all be present at the same time when signing;

5. The witnesses must also sign the will in the presence of the testator;

6. If the will consists of more than one page, each page other than the page on which it ends, must be signed by the testator and witnesses;

7. If a testator signs by using a mark as a signature, a magistrate, justice of the peace, commissioner of oaths or notary public certifies at the end thereof that he has satisfied himself as to the identity of the testator and that the will, so signed, is the will of the testator, and if the will consists of more than one page, each page other than the page on which it ends, is also signed, anywhere on the page, by the magistrate, justice of the peace, commissioner of oaths or notary public who so certifies;

8. If any deletion, addition, alteration or interlineation is made, the following is required:

a. The Testator must identify and sign next to any deletion, addition, alteration or interlineation;

b. Such signature must be made by the testator in the presence of two competent witnesses who are all present at the same time;

c. The witnesses must identify and sign next to any deletion, addition, alteration or interlineation, in the presence of the testator and each other and at the same time;

d. If the deletion, addition, alteration or interlineation is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a magistrate, justice of the peace, commissioner of oaths or notary public certifies on the will that he has satisfied himself as to the identity of the testator and that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.

 

1Wills Act 7 of 1953, section 2
2Act 81 of 1987

 

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This newsletter 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.

 

Header Banner dfsg I am every woman
I am the hands that nurture the earth
I am the reason children understand their worth
I am courageous, I am compassionate and brave
I am everything, but I am no one’s slave
I have fought battles, sometimes without using my hands
and where forgiveness fails, my grace softly lands
I am black, I am white, I am grey
For sinners and saints alike, I pray
I sow, I stitch, I mend
I sometimes wear makeup and I sometimes pretend
I am strong, I am weak, I am me
I have fought hard to be free

and to deserve my rightful place in society.

This month’s newsletter is a tribute to all the wonderful women of South Africa.

We salute you.

JJR INC. Team

You-strike-a-woman,-you-strike-a-rock!-(Melcom-Oosthuizen) While researching various topics relating to Women’s month I stumbled upon the title, a struggle song, with specific relevance to Women’s day and as a result core to our country’s history. It was on the 9th of August 1956 when over
20 000 women of all races marched in protest to the “pass laws”. The phrase resonates deep emotional connotations regarding the backbone of our society, our women. Sadly, the words bear so much more truth when you consider that South Africa has one of the highest incidences of abuse against women in the world. Even though the month of August is known as Women’s month, this article remains relevant to all persons suffering from or involved in any form of abuse.

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WHAT IS DOMESTIC VIOLENCE?

Often we incorrectly interpret the phrase ‘domestic violence’ to consist of only physical abuse, but this is not entirely true. In terms of the Domestic Violence Act 116 of 1998 domestic violence has been given a broad definition and incorporates all of the below mentioned acts:

  • • Physical abuse;
  • • Sexual abuse;
  • • Emotional, verbal and psychological abuse;
  • • Economic abuse;
  • • Intimidation;
  • • Harassment;
  • • Stalking;
  • • Damage to property;
  • • Entry into the complainant’s residence without consent, where the parties do not share the same residence; or
  • • Any other controlling or abusive behaviour towards the Complainant.

WHO CAN APPLY?

It must further be pointed out that the protection afforded above is not just applicable to married couples, but to their children, unmarried couples, parents, siblings and all other persons sharing a living space. The only requirement is that the respective parties must share a living space. The act makes provision for one exception, namely entry into the complainant’s residence without consent, where the parties don’t share the same residence.

WHAT KIND OF PROTECTION CAN BE CLAIMED?

The Complainant can ask for various remedies. The remedies are completely set out in Form 2, which is discussed hereunder. Examples of the remedies include:

  • • Not to commit an act of Domestic Violence or get the help of another person to commit same;
  • • Not to enter the shared residence, or specific part of the shared residence;
  • • Not to enter the Complainant place of employment;
  • • Not to prevent the Complainant, or any other person who ordinarily lives in the residence from entering or remaining in the shared residence;
  • • Seizure of the Respondent’s weapons;
  • • Collection of the Complainant’s property from the shared residence;
  • • Payment of emergency monetary relief;
  • • Refusal of contact with the minor children;
  • • The physical address of the Complainants residence not to be disclosed to the Respondent.

HOW DO I APPLY FOR A PROTECTION ORDER AND ENSURE MY PROTECTION?

The procedure for obtaining a protection order is a rather simple procedure designed to assist members of the public. All relevant forms can be found on http://www.justice.gov.za/forms/form_dva.htm, and can be completed with relevant ease. In order to initiate the proceedings, the Complainant (the person applying for protection) must complete Form 2 and submit same to your nearest Magistrates Court in the area where you live or work.

THE PROTECTION FROM HARASSMENT ACT, ACT 17 OF 2011

Another problem that many people face is the act of harassment. The Act defines ‘harassment’ as either direct or indirect conduct that either causes harm or inspires the Complainant to reasonably believe that harm may be caused. The conduct includes the following:

  • • Watching, pursuing or accosting of the Complainant or someone in a close relationship with the Complainant such as a spouse or family member;
  • • Loitering outside or near the building or place where the Complainant or related person lives, works, studies or happens to be.
  • • Verbal communication aimed at the Complainant;
  • • Sending, delivering or causing the delivery of letters, packages and e-mails; and
  • • Sexual harassment which is further defined as “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome.

The procedure to follow in cases of harassment is extremely similar to the procedure of Domestic Violence. The relevant forms can be found on http://www.justice.gov.za/forms/form_pha.html.

CONCLUSION

Both the Domestic Violence Act and the Protection from Harassment Act have made huge strides with regards to advancements in Women’s rights in South Africa. Despite this fact, there are still many people who are unaware of these Acts, the specially designed Courts and the protection afforded in both the Acts. It is important that this knowledge be shared and that we as the citizens of this country make a stand as no form of abuse should be tolerated no matter the persons gender, race, religion or position in society. Women remain pivotal in our society and key to the success of our nation in future and remember Wathint' Abafazi Wathint' imbokodo!

 

Cohabitation-Relationships-(Chazanne-Grobler)

Marriage is an institution of great legal significance, yet cohabitation relationships (also referred to as domestic partnerships) are becoming more prominent in our society. Many women find themselves in the precarious positions of partners not wanting to tie the knot or only hearing the promises of wedding bells. For other women entering into a cohabitation relationship is simply a personal choice. Whatever the reason may be for the domestic partnership, cases such as Volks N.O. v Robinson demonstrate that many women are left destitute after the cohabitation relationships end. This begs the question: Does cohabitation relationships leave women vulnerable?

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Many domestic partners are under the misconception that living together as “husband” and “wife” for an extended period of time results in a common law marriage with all the associated rights including spousal maintenance and proprietary interests. In South Africa common-law marriages are not recognised and no legal protection is afforded to domestic partnerships. The attitude towards cohabitation relationships or domestic partnerships is aptly described in the dissenting judgment of Sachs in Volks NO v Robinson and others where he states that,

“Yet there can be no doubt that many prejudices of the past linger on, particularly against women who are seen as not conducting their lives in a manner befitting their culture or religion. A certain degree of conventional disdain coupled with moral disapproval is still directed at unmarried couples. By the very nature of their unconventional relationship they are regarded as either immoral, irresponsible or defiant. This will be irrespective of the actual degree of commitment, seriousness and stability of their family relationships.”

Cohabitation relationships take on the characteristics of a marriage and women often become the caregiver of the household leaving them economically dependent on their partners. After the relationship ends, these women suffer serious hardships and unlike married women are left without any the legal protection. The end of a cohabitation relationship does not always end in hardship but can place partners, especially women in a vulnerable position. Despite no legal protection being afforded to domestic partnerships per se private law remedies can be utilised to attach consequences to a relationship. The private law remedies include, inter alia, a universal partnership, concluding a domestic partnership agreement, or the creation of a trust. These remedies do not address all of the complexities involved with the ending of relationship as compared to the remedies available to married couples. Until the draft Domestic Partnership Bill of 2008 is enacted serious consideration should however be given to entering into a written agreement or creating a trust to protect your interest.

 

1 Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC).

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This newsletter 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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Are you starting up your own business?

In this issue we are going to touch on some important aspects to be aware of when you have a company / starting up your own business. For instance: who may be appointed as directors and who are disqualified to be directors; what to take into consideration and which processes to follow when dismissing an employee; what your options are as company or any person with an interest in a company, when that company has been deregistered or reinstated after deregistration and you are being prejudiced by it.

Make sure you are aware of the possible obstacles of having your own business and know your options and rights!

Who-may-be-appointed-as-director

Certain people are not eligible to be appointed as directors of a company. In this article we look at who is disqualified from being a director as well as the effects of the actions of such persons while still acting as director.

A company must not knowingly permit an ineligible or disqualified person to serve or act as a director, according to section 69(3) of the Companies Act 71 of 2008. “Knowingly” includes the situation where the company should reasonably have known that the person is ineligible or disqualified.

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Section 69(7) lists the persons on which there are an absolute prohibition, being juristic persons, minors or any persons disqualified in terms of the Memorandum of Incorporation. Section 69(8) lists the persons that are disqualified on a temporary basis, being someone who has been prohibited by the court or whom the court has declared a delinquent, unrehabilitated insolvents, persons who were removed from an office of trust on the grounds of misconduct involving dishonesty, and persons who were found guilty of a criminal offence and imprisoned without the option of a fine, or were ordered to pay a higher fine for being found guilty of any dishonesty crimes.1

A question that arises here is what the effect would be of appointing a prohibited director. Section 69(4) says that a person immediately ceases to be a director if they are prohibited from being a director, but section 71(3) states that if a shareholder alleges that a person is disqualified then the person must be removed by a board resolution before they cease to be a director. This means that any act done by such a person, despite his disqualification, will be valid and binding on the company unless the third party who was involved in the act was aware that the person they were dealing with was disqualified.2

Section 162(5) (a)-(f) sets out the grounds for an order of delinquency. A court must make an order declaring a person to be a delinquent director if the person:
1. consented to serve as a director, or acted in the capacity of a director or prescribed officer, while ineligible or disqualified to be a director;
2. acted as a director in a manner that contravened an order of probation; 3. grossly abused the position of director while being a director;
4. took personal advantage of information or an opportunity, or intentionally or by gross negligence inflicted harm upon the company or a subsidiary while being a director;
5. acted in a manner that amounted to gross negligence, wilful misconduct or breach of trust while being a director; or as contemplated in section 77(3) (a), (b) or (c);
6. has repeatedly been personally subject to a compliance notice or similar enforcement mechanism;
7. has been convicted of an offence at least twice, or subjected to an administrative fine or similar penalty; or
8. was a director of a company or a managing member of a close corporation, or controlled or participated in the control of a juristic person that was convicted of an offence, or subjected to a fine or similar penalty, within a period of five years.3 & 4

If a person is declared a delinquent in terms of section 162(5) (a) or (b) it is unconditional and for the lifetime of the person. If a person is declared a delinquent in terms of section 162(5) (c)-(f) this is temporary for a minimum of 7 years.5

It is therefore very important, when appointing a director, to make sure that he is qualified in terms of the new Companies Act. One must do proper research about a person accordingly before appointing him as a director of a company because it is possible that if you do not do so, the company in which you are a shareholder may have to bear the consequences of the actions of this disqualified person.

References:
• Companies Act 71 of 2008
• FHI Cassim et al Contemporary Company Law (2012)

 

1Section 69(7) – (8) of the Companies Act 71 of 2008.
2Section 69(4) and 71(3) of the Companies Act 71 of 2008.
3Section 162(5) (a)-(f) of the Companies Act.
4FHI Cassim et al Contemporary Company Law (2012) 435 – 437.
5FHI Cassim et al Contemporary Company Law (2012) 438.

 

At-Last-Article

Since the commencement of the new Companies Act, 71 of 2008 (“the Act”), there have been different interpretations and conflicting rulings in the different divisions of the High Court with regard to the reinstatement of deregistered companies by virtue of section 82(4)1 of the Act and more specifically whether the reinstatement has retrospective effect. The decisions varied from no retrospectivity to partial retrospectivity to complete retrospectivity.

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Non-retrospectivity

If the reinstatement of a company is with non-retrospectivity any actions taken on behalf of the company during the deregistered period will be void and of no effect. The reason for this is that deregistration puts an end to the existence of a company, it brings an end to its corporate personality.2 The interpretation of non- retrospectivity is supported by Bright Bay Property Service (Pty) Ltd v Moravian Church in South Africa 2013 (3) SA 78 (WCC).

Partial retrospectivity

In Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC) the court’s interpretation of The Act, regarding the reinstatement of a company, is one of partial retrospectivity by which former assets are revested in the company’s name, but it does not validate corporate activity conducted on behalf of the company during the period of deregistration.3 The court’s reasoning for this is the fact that should the reinstatement of a company be with complete retrospectivity it can cause severe prejudice to third parties.

Complete Retrospectivity

Complete Retrospectivity means that with reinstatement of a company, the company will not only be revested with its property, but all corporate activities during the period of its deregistration will also be validated. Two previous High Court cases 4 appear to support this concept, but the issue of retrospectivity was not entirely considered in either one of them and can therefore not be seen as authority on this point.

Ruling by the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) 5 has recently ruled on the interpretation of section 82(4) of the Act on an appeal from the Western Cape High Court, Cape Town.6 The SCA considered if there is any basis for the interpretation by the High in the Peninsula case that reinstatement of a company serves to revest it with its property, but does not validate its corporate activity.

The SCA did not agree with the latter view, and was of the following opinion: ‘revesting of the company with its property can have the same detrimental effect on third parties who have in the meantime acquired rights to that property…and that refusal to validate the corporate activities of a company during its period of demise can be equally devastating to the interests of bona fide third parties who were unaware of the deregistration… The truth is that deregistration of a company bears that inherent risk’.7 The SCA further stated that potential prejudice to third parties therefore cannot render the interpretation of section 82(4) as to exclude retrospective validation.

An application to reinstate the registration of a company under section 82(4) must be advertised in a local newspaper, giving 21 days’ notice of the proposed application for reinstatement.8 Therefore third parties who might be prejudiced by the proposed reinstatement have the opportunity to prevent the reinstatement.

The SCA is further of the meaning that the wording of section 82(4) can in no way suggest partial retrospectivity and that section 82(4) has automatic retrospective effect not only in revesting the company with its property but also in validating its corporate activities during the period of its deregistration.9

The SCA further emphasized that section 83(4)(a)10 of the Act is available to prejudiced third parties and any ‘person with an interest in the company’ to apply for relief connected with the dissolution of the company, even after the company has already been administratively reinstated in terms of section 82(4).11 Thus, in the view of the SCA : ‘the legislature had intended to alleviate the prejudicial effect on third parties or even the company which may be brought about by the retrospective effect of reinstatement under section 82(4)’ of the Act.12

Reinstatement of deregistered companies in South Africa must thus be interpreted as reinstatement with complete retrospective effect, by which former assets are revested in the company`s name and full validation of its corporate activities conducted on behalf of the company during its period of deregistration.

 

1 Sec 82(4) of The Act: If the Commission deregisters a company as contemplated in subsection (3), any interested person may apply in the prescribed manner and form to the Commission, to reinstate the registration of the company.
2 Miller & other v Nafcoc Investment Holding Co Ltd & Others 2010 (6) SA 390 (ZASCA).
3 Also supported by Missouri Trading CC & another v ABSA Bank Ltd & others 2014 (4) SA 55 (KZD).
4 Amarel Africa Distributors (Pty) Ltd v Padayache (236/2011) [2013] ZAGPPHC 87; Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd & others [2014] 3 All SA 664, (218/13) [2014 ZASCA 63.
5 Newlands Surgical Clinic v Peninsula Eye Clinic (086/2014) [2015] ZASCA 25.
6 Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC).
7 See note 8 at para 26.
8 Regulation 40(7) of the Companies Regulations, GN R351 of 2011, GG34239, 26 April 2011, promulgated under the Act; Practice note issued by the CIPC GenN 204, GG 36225, 15 March 2013.
9 See note 8 at 25 para 29.
10 Sec 83(4): At any time after a company has been dissolved – (a) the liquidator of the company, or other person with an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or any other order that is just and equitable in the circumstances.
11 See note 8 at para 30.
12 Supra 11.

 

What-constitutes-fair-d-ismissal

Labour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he does renew the contract, but on less favourable terms than the employee had reasonably expected.

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Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

 

This newsletter 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.

 

Header-Banner-(SITE) dfsg

This month’s issue is all about the youth.

From the protection of children’s rights and supporting children in need, to inspiring young children by exposing them to different career options available to them.

In the spirit of this youth edition we call upon you to support our Annual Function for the Benefit of Charity; this year on behalf of SOS Children’s Villages. Read more about the event and how you can make a difference in a child’s life.

Visit our Facebook Page to see how JJR Inc. supported Cell C’s Take a Girl Child to Work initiative!

Children-Road-Safety-(Heading-2)

It is quite common that South Africa has a very high mortality rate when it comes to road accidents, trauma and more specifically the death of children as passengers in motor vehicle accidents.

The National Road Traffic Act has been silent with regards to infants under the age of 3 and whether or not it is compulsory for them to wear a seatbelt. The Transport Department however has decided to give clarity on the matter and has published amendments to the National Road Traffic Regulations 2000 under the National Road Traffic Act, 1996.

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According to the amendments, each parent will have to take the necessary steps and measurements to ensure the child’s safety. Each child under the age of 3 will be required to be seated in a protective child seat and to wear a seatbelt. The Department states that due to the financial implications that this new regulation might have, it is expected to be of effect 6 months from the date of publication of the regulation.

The proposed penalty for parents and or adults transporting children without a protective child seat and or a safety belt will be determined by the chief magistrates of the different districts and their recommendations will be considered upon the making of the penalty. Parents is therefore advised to comply with the safety regulations from the start to ensure their child’s safety and to avoid prosecution.

 

Accessing-the-damages-(Heading-2)

In the unanimous Constitutional Court judgment by Tshiqi AJ, Coughlan N.O v Road Accident Fund 2015 ZACC 9, the court had to determine whether foster care grants should be deducted from the compensation payable by the Road Accident Fund to foster children.

The children in this case, as represented by the curator ad litem Coughlan, were orphaned after they lost their mother when she was killed in a motor vehicle accident in June 2002. After their mother’s death the children’s maternal grandparents applied and were appointed by the Children’s Court as foster parents. The foster parents in terms of the Social Assistance Act received foster child grants for the three children. As a result of the accident a claim was lodged on behalf of the children for loss of support. The RAF admitted liability, however, it contended that the foster care grants received should be deducted from the compensation payable as failure to do so would amount to double compensation.

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The curator ad litem, Coughlan, brought the application on behalf of three foster children contending that the grants cannot be deducted by the RAF as it amounted to res inter alios acta. In the High Court case (Western Cape division) the court concluded that the foster child grants were in fact res inter alios acta and ordered the RAF to pay the proven damages. The RAF was granted leave to appeal to the Supreme Court of Appeal which subsequently upheld the appeal. The Supreme Court of Appeal concluded that the foster child grants need to be taken into account in assessing the damages to be awarded for their loss of support as it would amount to double compensation.

As this issue deals with a vulnerable group in our society the Constitutional Court was approached to decide whether the grants can be deducted. The Court (on the request of the amicus curiae the Centre for Child law) broadened the enquiry and looked at not only the foster child grants but also the child support grants and whether they are deductible from the damages awarded for loss of support.

In order to determine whether the grants (whether it is child support grants or foster care grants) is deductible, the court investigated various aspects. Firstly, the Court looked at the States duty with regard to caring for children in need and the obligation and purpose of the RAF. The State has constitutional obligations in terms of sections 27 and 28 to take care of children in need within its available resources. In terms 156(1)(e) of the Children’s Act 38 of 2005 the State can fulfil its obligation by way of foster care or youth centres with regard to the care of children who either have no parent/care-giver or the person is unable or unsuitable to take care of the children. Foster care specifically is more than mere money, and as the Court states it “encompasses parenting, love, care, nurturing, discipline and other benefits of raising a child in a family environment” Comparing this to RAF’s compensation which is simply the damages awarded for loss related to material needs. The Court concluded that is clear that the “non-monetary dimension of fostering reveals the inappositeness of comparing a grant designed to encourage fostering with compensation for the loss of a parental breadwinner.”

Secondly the Court looked at the causal link between the death and foster care as well as the fact that the grants are paid to the parent directly and not the child. It is clear that foster care is not predicated on the death of the parent but based on the child being in need of care. Furthermore, the grants as opposed to the compensation payable by the RAF, is paid to the foster parents who utilises the money for the welfare of the children.

In conclusion, taking the above mentioned factor into consideration, the Constitutional Court brought clarity to the situation and ruled that the child support grants and foster care grants should not be taken into account when an award of damages for loss of support is made.

 

1 Common law doctrine which holds that a contract cannot adversely affect the rights of one who is not party to the contract.

 

Child-Labour-(Heading-2)

These days so many children drop out of schools to join the working class rather than to receive a good education and to pursue a professional career. It is tempting for employers to employ these desperate young people for a lower fee than the educated individual. The BCEAA (Basic Conditions of Employment Amendment Act) indicates that it is a criminal offence to employ a child under the age of 15 (fifteen) years old except if you as the employer have a permit issued by the Department of Labour to employ a child specifically in the area of performing arts. The BCEAA further indicate that children between the ages of 15 (fifteen) and 18 (eighteen) years old may not be employed to do inappropriate work for their age or work that places them at risk. The inappropriate aspect regarding child labour mentioned above is when the tasks given are exploitative or hazardous of nature for the child’s age or detrimental to the child’s spiritual, mental, physical or moral development. Even if the child’s employment is of a desperate nature to provide financial security for his parents, it is not a ground that the employer can rely on to justify the employment of this child. The last mentioned example remains child labour and the employer can face a hefty fine or imprisonment of up to 3 (three) years.

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The employer should consider the following aspects if he intends to employ a child between the ages of of 15 (fifteen) and 18 (eighteen) years old:

  • • There should be a written contract of employment between the employer and the child’s parent or his/her legal guardian.
  • • Remuneration should be paid to the child’s parent or his/her legal guardian.
  • • The child may not be instructed to work at night (between the hours of 22h00 and 05h00) without written permission by the child’s parent or his/her legal guardian.

These are just a few aspects that the employer should bear in mind when legal child labour is required. The Department of Labour along with the Department of Education would rather see children get a well rounded education and join the working class at a more suitable age. This last mentioned vision would hopefully lead to the growth of the educated working class and less exploitation of child labour.

 

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This newsletter 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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The Constitutional Court on 11 September 2014 delivered judgment in the Turnbull-Jackson case involving an 11-year long legal dispute regarding the approval of building plans by the Hibiscus Coast Municipality. The case reached the Court as an appeal against an order of the KwaZulu Natal High Court. Pearl Star Investments 14 CC obtained approval from the Hibiscus Coast Municipality to build a three-storey block of flats. On previous occasions, Mr Turnbull-Jackson succeeded to have the approval set aside, but in 2006 he failed to set aside the most recent building plans.

He instituted a review application in the High Court, but failed once again. On appeal to the Constitutional Court he based the review of the approval on various grounds including, amongst others, bias of the building control official as well as the fact that the necessary level of compliance with section 7(1)(b)(ii) of the Building Standards Act was not met.

Section 7(1)(b)(ii) specifically deals with refusal of the approving building plans if certain disqualifying factors, such as the fact that a building can be unsightly or will derogate from the value of the adjoining or neighbouring properties, is present.

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Madlanga J (with whom Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Majiedt AJ and Zondo J concurred), dismissed each of the grounds on which Mr Turnbull-Jackson relied. The central dispute, however, addressed the two different interpretations of section 7(1)(b)(ii) of the Building Standards Act. Mr Turnbull-Jackson in his grounds for review, relied on the interpretation given to section 7(1)(b)(ii) in the Constitutional Court case of Walele v City of Cape Town and Others 2008 (6) SA 129 (CC). The municipality in turn relied on the Supreme Court of Appeal (SCA) case True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) where the SCA expressly did not follow the Walele case. The True Motives interpretation states that the local authority must only refuse to grant approval of building plans if satisfied that the disqualifying factors will in fact or probably eventuate. This differs from the Walele case’s approach requiring the local authority to approve plans only if it is satisfied that the disqualifying factors will not eventuate before granting approval. At the core of the Walele-True Motives dispute is the principal of judicial precedent, a core component of South African law. This principle entails that courts must follow and are bound to decisions of higher courts. Only the ratio decidendi, or the reason for the judgment, needs to be followed and not any remarks that have been made in passing. The question is raised whether the SCA in True Motives erred by not following the judgment of Walele. The Constitutional Court had to determine whether the interpretation of section 7(1)(b)(ii) in Walele was made in passing, and if not, whether the interpretation was incorrect. Only in those two instances the SCA could depart from the Walele decision. Madlanga J held that the interpretation of section 7(1)(b)(ii) in Walele formed part of the rationale behind the decision. The decision itself in Walele took into consideration the possibility of harm to the owner and occupants of the property to be developed, and the fact that a development may have adverse effects on the rights of owners of neighbouring properties. It is for this reason that in Walele the court interpreted section 7(1)(b)(ii) to mean that local authority can only approve plans if it is satisfied that the disqualifying factors will not eventuate. As a result Madlanga J upheld the decision as being correct and stated that in the particular set of facts of Turnbull-Jackson there was no improper exercise of section 7(1)(b)(ii). The reasons advanced by the SCA for its departure from Walele did not justify the course adopted. The SCA erred in not following the Walele decision. Madlanga J made it clear that all courts, including the SCA, are bound to follow decisions of the Constitutional Court and only in specific instances are lower courts allowed to depart from judgments. The importance of precedents was emphasised when the Constitutional Court quoted Judge Cameron who stated, “Without precedent there would be no certainty, no predictability and no coherence.”

 

labour-section copySince the Labour Relations Act 66 of 1995 (“LRA”) first came into action, the essence of the fixed term contract of employment and its existence have been questioned by both the CCMA and the Labour Court. Many Employers employed employees on a fixed term basis due to the fact that it seemed like the “easier way out” and that it supposedly meant that Employers had the power to somehow boycott the workings of the LRA, Schedule 8 of the LRA as well as the Basic Conditions of Employment Act 75 of 1997.

Employers also used these supposed fixed term contracts to their advantage by continuously renewing the contracts upon its termination, sometimes on a month-to-month basis, only to inform employees on the last day of a month that their services are not required anymore and that they should have been aware of the fact that this termination could have happened on any given time due to the nature of their employment contracts. The Labour Relations Amendment Act (“LRAA”) however, tells a different story.

The Labour Relations Amendment Act was assented by President Jacob Zuma on the 14th of August 2014 and so it proposed that the Act will be in full force before the end of 2014. The LRAA, in Section 198B, defines a fixed term contract as a contract of employment that terminates on the “occurrence of a specified event, on the completing of a specified task or project, or on a fixed date other than an employee’s normal or agreed retirement age”.

The LRAA specifically states that in the event that a fixed term contract is entered into between an employer and an employee, a justifiable reason has to be given for the nature of the contract. The LRAA refers to the following reasons as being justifiable:

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1. Replacement of another employee who is temporarily absent from work 2. A temporary increase in workload (not exceeding 12 months) 3. Student / recent graduate employed for training purposes or to gain work experience; 4. Project specific work with a limited duration; 5. Non-citizens with working permits for a specified period; 6. Seasonal work 7. Official public works and or public job creation schemes; 8. Positions funded by an external source for limited periods; 9. After the normal / agreed retirement age has been reached; 10. Any other justifiable reason. These justifiable reasons however, are not the only factor that needs to be considered when regard is being given to the new legislation for fixed term contracts. The offer, renewal and or extended offer for fixed term contracts must be in writing and must contain specific reference to the reasons as to why this is a fixed term contract, the essence of which has to be justifiable. Inference is also drawn to Section 198B(8)(a) of the LRAA wherein it is stated that an employee who is employed in terms of a fixed term contract for a period longer than three months, must not be treated “less favourably” than an employee employed on the same and or similar terms and more specifically on a permanent basis, unless there is once again a “justifiable reason” for the different treatment. A grace period of three (3) months after the commencement of the Labour Relations Amendment Act 2014 will be granted to all Employers to remedy their existing fixed term contracts of employments with employees that are not in accordance with the subsection referred to. It is also noted that an employee employed on a fixed term basis for a period exceeding 24 months, upon expiry of the contract, has to be paid one week’s remuneration for each completed year of the contract calculated in accordance with Section 35 of the Basic Conditions of Employment Act 75 of 1997. Based on the new amendments it is therefore made abundantly clear that fixed term contracts need to be entered into mindfully by Employers, as it appears as if they are here to stay and will not easily be hoodwinked.
 
sub-heading03.3 copyMost sale agreements contain the ever popular ‘suspensive condition’ and too many sellers and buyers are left wondering what these clauses actually mean. A suspensive condition is inserted into a sale agreement to the benefit of a buyer. This condition affords the buyer the opportunity to obtain bond approval within the time frame mentioned in the suspensive condition. Should the buyer be unsuccessful in obtaining bond approval, the sale agreement will lapse and become null and void. The buyer can therefore not be held liable to the seller for breach of contract if he could not comply with the suspensive condition timeously. However, if the buyer did comply fully with the suspensive condition and then decides to withdraw from the agreement, he can beheld liable for damages suffered by the seller.
Both the seller and buyer should therefore take care as to the proper wording contained in the suspensive condition. The clause should make mention of the loan amount the buyer wishes to apply for, as well as the date on which such bond approval should be in place. If the buyer intends to utilise funds from the sale of his current property for the purchase of the new property, he may insert the successful sale and registration of his current property as a suspensive condition into the terms of the new sale agreement by which new property is purchased. It is further important to note that should the buyer not comply timeously and the agreement has lapsed, but both parties still wish to proceed with the transaction, the parties must then enter into a new agreement for the purchase of the property.
 
sub-heading03
The National Credit Act 34 of 2005 (“NCA”) determines that any credit provider that wants to enforce a credit agreement must, under section 129, deliver a notice to a consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights in terms of the NCA. In the case of Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1 the parties entered into an instalment sale agreement for the purchase of a motor vehicle. After Mr Kubyane fell into arrears Standard Bank informed him of the default by sending a notice in terms of section 129 by registered post.
The letter was specifically sent to the postal address that Mr Kubyana indicated in the agreement
Mr Kubyana, however, failed to collect his registered post. Five weeks later the notice was returned to Standard Bank uncollected and Standard Bank continued to institute summons against Mr Kubyana. Mr Kubyana raised a special plea stating that Standard Bank had not discharged all its obligations in terms of section 129 of the NCA, as he was only made aware of the default after receiving the summons.
Mr Kubyana specifically relied on the case of Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142(CC) where, similarly, a section 129 notice was sent by registered post but was returned to the credit provider unclaimed.
Mr Kubyana based his argument on the fact that if the post is unclaimed the creditor provider has failed to fulfil their obligations in terms of the NCA. The Constitutional Court in Mr Kubyana’s case had to determine what constitutes proper delivery if a consumer elected to receive notices by way of post. In general, in order to effect delivery, the credit provider must take those steps that would bring the notice

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The Sebola case can be distinguished from the facts of Mr Kubyana’s as Sebola was successful in challenging the delivery of the notice because it was sent to the wrong post office. The notice in the Sebola case would
never have reached Mr Sebola. Mr Kubyana on the other hand merely refrained from collecting his registered post. The Constitutional Court held that when a consumer has elected to receive notices by way of post, a credit provider must prove
1.the notice was sent by way of registered mail;
2.that the notice reached the correct branch of the Post Office; and
3.that the notification from the Post Office requesting that the consumer collect the section 129 notice was sent to the chosen address.
If a creditor provider ensures that the above steps have been taken, the credit provider would have fulfilled its obligations to bring the notice to the intention of the reasonable consumer. It will then be for the consumer to provide reasonable explanations as to why the notice still did not reach the consumer.
Mr Kubyana was unable to provide a suitable explanation for his failure to collect his registered post, there was therefore no evidence before the Court showing why it was reasonable for Mr Kubyana not to have taken receipt of the section 129 notice. Standard Bank was under no obligation to employ additional means to ensure that Mr Kubyana received his notice.
The Constitutional Court determined that it is sufficient if the notice is reduced to writing and made available to the consumer at his or her nominated address. If the nominated address is a postal address the delivery must be by registered post to the correct post office. If the consumer then fails to respond to the notice, the credit provider is allowed to proceed with legal steps against the consumer.

 

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This newsletter 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.

 

Header Banner dfsg I am every woman

Most people postpone the drafting of a will. It is understandable, because most people do not like to think about death. But death is inevitable, and when it comes will your loved ones be taken care of?

Don’t postpone. Select the recipients of your estate today or the laws of intestate succession will select it for you...

In this Newsletter we will be looking at the importance of a will as well as the requirements and formalities of a valid will.

Enjoy the read and contact us when you are ready to take the next step!

"Death is inevitable. Life is inevitable too. However, the timing is somewhat flexible."
- Amelia Mysko

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One of life’s utmost certainties is death. It is never too early to start thinking of a will to protect your current and future loved ones. A will ensures that one does not place a burden on the ones left behind. It further ensures that all of your assets will be distributed amongst your heirs according to your wishes, and gives you the opportunity to nominate a reliable person as your executor that will make sure that your loved ones are taken care of after your death.

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The following issues should be borne in mind when drafting a will:

  • • Who the executor should be;
  • • Creating of a trust to support your spouse and children;
  • • How your liabilities will be covered;
  • • Guardianship for the minor children (if applicable);
  • • How to approach tax (and not to avoid it);
  • • Who your beneficiaries should be;
  • • To indicate whether you are an organ donor or not;
  • • Specific provisions for important medical decisions (i.e. under which circumstances life support should be terminated).

It should be noted that once a will has been drafted it should be revisited on a regular basis due to the possible change of beneficiaries, in the event of divorce or death, a change in your financial position, or in the case of nominating another executor.

A will should not be seen as the deceased ruling from the grave, but rather as a way for the deceased to ensure that loved ones are taken care of in the future; that a reliable person as executor will fulfill the wishes of the deceased; that any debts are taken care of rather than it lurking like dark shadows over the ones left behind. It also makes the administration process of the estate a lot easier for the executor and it prevents the estate from falling under the laws of intestate succession.

So make an appointment today to see one of our legal experts to ensure that all the factors mentioned herein are covered, that your loved ones are taken care of and that your wishes be fulfilled…sooner rather than later.

 

Do-I-have-a-valid-will

It is very important to know that your will has to comply with a few formal basic requirements in order for it to be valid 1. If the will is found to be invalid, the Intestate Succession Act 2 will come into operation and the assets are distributed in a definite order of preference among the heirs. In order to ensure that your belongings are distributed to the ones your love; make sure that your will meets the following formal requirements:

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1. The will must be signed at the end thereof by the testator;

2. The signature must be made by the testator himself;

3. The testator must make his signature in the presence of at least two competent (older than fourteen years) witnesses;

4. The testator and witnesses must all be present at the same time when signing;

5. The witnesses must also sign the will in the presence of the testator;

6. If the will consists of more than one page, each page other than the page on which it ends, must be signed by the testator and witnesses;

7. If a testator signs by using a mark as a signature, a magistrate, justice of the peace, commissioner of oaths or notary public certifies at the end thereof that he has satisfied himself as to the identity of the testator and that the will, so signed, is the will of the testator, and if the will consists of more than one page, each page other than the page on which it ends, is also signed, anywhere on the page, by the magistrate, justice of the peace, commissioner of oaths or notary public who so certifies;

8. If any deletion, addition, alteration or interlineation is made, the following is required:

a. The Testator must identify and sign next to any deletion, addition, alteration or interlineation;

b. Such signature must be made by the testator in the presence of two competent witnesses who are all present at the same time;

c. The witnesses must identify and sign next to any deletion, addition, alteration or interlineation, in the presence of the testator and each other and at the same time;

d. If the deletion, addition, alteration or interlineation is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a magistrate, justice of the peace, commissioner of oaths or notary public certifies on the will that he has satisfied himself as to the identity of the testator and that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.

 

1Wills Act 7 of 1953, section 2
2Act 81 of 1987

 

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This newsletter 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.

 

Header Banner dfsg I am every woman
I am the hands that nurture the earth
I am the reason children understand their worth
I am courageous, I am compassionate and brave
I am everything, but I am no one’s slave
I have fought battles, sometimes without using my hands
and where forgiveness fails, my grace softly lands
I am black, I am white, I am grey
For sinners and saints alike, I pray
I sow, I stitch, I mend
I sometimes wear makeup and I sometimes pretend
I am strong, I am weak, I am me
I have fought hard to be free

and to deserve my rightful place in society.

This month’s newsletter is a tribute to all the wonderful women of South Africa.

We salute you.

JJR INC. Team

You-strike-a-woman,-you-strike-a-rock!-(Melcom-Oosthuizen) While researching various topics relating to Women’s month I stumbled upon the title, a struggle song, with specific relevance to Women’s day and as a result core to our country’s history. It was on the 9th of August 1956 when over
20 000 women of all races marched in protest to the “pass laws”. The phrase resonates deep emotional connotations regarding the backbone of our society, our women. Sadly, the words bear so much more truth when you consider that South Africa has one of the highest incidences of abuse against women in the world. Even though the month of August is known as Women’s month, this article remains relevant to all persons suffering from or involved in any form of abuse.

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WHAT IS DOMESTIC VIOLENCE?

Often we incorrectly interpret the phrase ‘domestic violence’ to consist of only physical abuse, but this is not entirely true. In terms of the Domestic Violence Act 116 of 1998 domestic violence has been given a broad definition and incorporates all of the below mentioned acts:

  • • Physical abuse;
  • • Sexual abuse;
  • • Emotional, verbal and psychological abuse;
  • • Economic abuse;
  • • Intimidation;
  • • Harassment;
  • • Stalking;
  • • Damage to property;
  • • Entry into the complainant’s residence without consent, where the parties do not share the same residence; or
  • • Any other controlling or abusive behaviour towards the Complainant.

WHO CAN APPLY?

It must further be pointed out that the protection afforded above is not just applicable to married couples, but to their children, unmarried couples, parents, siblings and all other persons sharing a living space. The only requirement is that the respective parties must share a living space. The act makes provision for one exception, namely entry into the complainant’s residence without consent, where the parties don’t share the same residence.

WHAT KIND OF PROTECTION CAN BE CLAIMED?

The Complainant can ask for various remedies. The remedies are completely set out in Form 2, which is discussed hereunder. Examples of the remedies include:

  • • Not to commit an act of Domestic Violence or get the help of another person to commit same;
  • • Not to enter the shared residence, or specific part of the shared residence;
  • • Not to enter the Complainant place of employment;
  • • Not to prevent the Complainant, or any other person who ordinarily lives in the residence from entering or remaining in the shared residence;
  • • Seizure of the Respondent’s weapons;
  • • Collection of the Complainant’s property from the shared residence;
  • • Payment of emergency monetary relief;
  • • Refusal of contact with the minor children;
  • • The physical address of the Complainants residence not to be disclosed to the Respondent.

HOW DO I APPLY FOR A PROTECTION ORDER AND ENSURE MY PROTECTION?

The procedure for obtaining a protection order is a rather simple procedure designed to assist members of the public. All relevant forms can be found on http://www.justice.gov.za/forms/form_dva.htm, and can be completed with relevant ease. In order to initiate the proceedings, the Complainant (the person applying for protection) must complete Form 2 and submit same to your nearest Magistrates Court in the area where you live or work.

THE PROTECTION FROM HARASSMENT ACT, ACT 17 OF 2011

Another problem that many people face is the act of harassment. The Act defines ‘harassment’ as either direct or indirect conduct that either causes harm or inspires the Complainant to reasonably believe that harm may be caused. The conduct includes the following:

  • • Watching, pursuing or accosting of the Complainant or someone in a close relationship with the Complainant such as a spouse or family member;
  • • Loitering outside or near the building or place where the Complainant or related person lives, works, studies or happens to be.
  • • Verbal communication aimed at the Complainant;
  • • Sending, delivering or causing the delivery of letters, packages and e-mails; and
  • • Sexual harassment which is further defined as “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome.

The procedure to follow in cases of harassment is extremely similar to the procedure of Domestic Violence. The relevant forms can be found on http://www.justice.gov.za/forms/form_pha.html.

CONCLUSION

Both the Domestic Violence Act and the Protection from Harassment Act have made huge strides with regards to advancements in Women’s rights in South Africa. Despite this fact, there are still many people who are unaware of these Acts, the specially designed Courts and the protection afforded in both the Acts. It is important that this knowledge be shared and that we as the citizens of this country make a stand as no form of abuse should be tolerated no matter the persons gender, race, religion or position in society. Women remain pivotal in our society and key to the success of our nation in future and remember Wathint' Abafazi Wathint' imbokodo!

 

Cohabitation-Relationships-(Chazanne-Grobler)

Marriage is an institution of great legal significance, yet cohabitation relationships (also referred to as domestic partnerships) are becoming more prominent in our society. Many women find themselves in the precarious positions of partners not wanting to tie the knot or only hearing the promises of wedding bells. For other women entering into a cohabitation relationship is simply a personal choice. Whatever the reason may be for the domestic partnership, cases such as Volks N.O. v Robinson demonstrate that many women are left destitute after the cohabitation relationships end. This begs the question: Does cohabitation relationships leave women vulnerable?

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Many domestic partners are under the misconception that living together as “husband” and “wife” for an extended period of time results in a common law marriage with all the associated rights including spousal maintenance and proprietary interests. In South Africa common-law marriages are not recognised and no legal protection is afforded to domestic partnerships. The attitude towards cohabitation relationships or domestic partnerships is aptly described in the dissenting judgment of Sachs in Volks NO v Robinson and others where he states that,

“Yet there can be no doubt that many prejudices of the past linger on, particularly against women who are seen as not conducting their lives in a manner befitting their culture or religion. A certain degree of conventional disdain coupled with moral disapproval is still directed at unmarried couples. By the very nature of their unconventional relationship they are regarded as either immoral, irresponsible or defiant. This will be irrespective of the actual degree of commitment, seriousness and stability of their family relationships.”

Cohabitation relationships take on the characteristics of a marriage and women often become the caregiver of the household leaving them economically dependent on their partners. After the relationship ends, these women suffer serious hardships and unlike married women are left without any the legal protection. The end of a cohabitation relationship does not always end in hardship but can place partners, especially women in a vulnerable position. Despite no legal protection being afforded to domestic partnerships per se private law remedies can be utilised to attach consequences to a relationship. The private law remedies include, inter alia, a universal partnership, concluding a domestic partnership agreement, or the creation of a trust. These remedies do not address all of the complexities involved with the ending of relationship as compared to the remedies available to married couples. Until the draft Domestic Partnership Bill of 2008 is enacted serious consideration should however be given to entering into a written agreement or creating a trust to protect your interest.

 

1 Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC).

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This newsletter 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.

 

Banner-Top-(July-2015) dfsg

Are you starting up your own business?

In this issue we are going to touch on some important aspects to be aware of when you have a company / starting up your own business. For instance: who may be appointed as directors and who are disqualified to be directors; what to take into consideration and which processes to follow when dismissing an employee; what your options are as company or any person with an interest in a company, when that company has been deregistered or reinstated after deregistration and you are being prejudiced by it.

Make sure you are aware of the possible obstacles of having your own business and know your options and rights!

Who-may-be-appointed-as-director

Certain people are not eligible to be appointed as directors of a company. In this article we look at who is disqualified from being a director as well as the effects of the actions of such persons while still acting as director.

A company must not knowingly permit an ineligible or disqualified person to serve or act as a director, according to section 69(3) of the Companies Act 71 of 2008. “Knowingly” includes the situation where the company should reasonably have known that the person is ineligible or disqualified.

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Section 69(7) lists the persons on which there are an absolute prohibition, being juristic persons, minors or any persons disqualified in terms of the Memorandum of Incorporation. Section 69(8) lists the persons that are disqualified on a temporary basis, being someone who has been prohibited by the court or whom the court has declared a delinquent, unrehabilitated insolvents, persons who were removed from an office of trust on the grounds of misconduct involving dishonesty, and persons who were found guilty of a criminal offence and imprisoned without the option of a fine, or were ordered to pay a higher fine for being found guilty of any dishonesty crimes.1

A question that arises here is what the effect would be of appointing a prohibited director. Section 69(4) says that a person immediately ceases to be a director if they are prohibited from being a director, but section 71(3) states that if a shareholder alleges that a person is disqualified then the person must be removed by a board resolution before they cease to be a director. This means that any act done by such a person, despite his disqualification, will be valid and binding on the company unless the third party who was involved in the act was aware that the person they were dealing with was disqualified.2

Section 162(5) (a)-(f) sets out the grounds for an order of delinquency. A court must make an order declaring a person to be a delinquent director if the person:
1. consented to serve as a director, or acted in the capacity of a director or prescribed officer, while ineligible or disqualified to be a director;
2. acted as a director in a manner that contravened an order of probation; 3. grossly abused the position of director while being a director;
4. took personal advantage of information or an opportunity, or intentionally or by gross negligence inflicted harm upon the company or a subsidiary while being a director;
5. acted in a manner that amounted to gross negligence, wilful misconduct or breach of trust while being a director; or as contemplated in section 77(3) (a), (b) or (c);
6. has repeatedly been personally subject to a compliance notice or similar enforcement mechanism;
7. has been convicted of an offence at least twice, or subjected to an administrative fine or similar penalty; or
8. was a director of a company or a managing member of a close corporation, or controlled or participated in the control of a juristic person that was convicted of an offence, or subjected to a fine or similar penalty, within a period of five years.3 & 4

If a person is declared a delinquent in terms of section 162(5) (a) or (b) it is unconditional and for the lifetime of the person. If a person is declared a delinquent in terms of section 162(5) (c)-(f) this is temporary for a minimum of 7 years.5

It is therefore very important, when appointing a director, to make sure that he is qualified in terms of the new Companies Act. One must do proper research about a person accordingly before appointing him as a director of a company because it is possible that if you do not do so, the company in which you are a shareholder may have to bear the consequences of the actions of this disqualified person.

References:
• Companies Act 71 of 2008
• FHI Cassim et al Contemporary Company Law (2012)

 

1Section 69(7) – (8) of the Companies Act 71 of 2008.
2Section 69(4) and 71(3) of the Companies Act 71 of 2008.
3Section 162(5) (a)-(f) of the Companies Act.
4FHI Cassim et al Contemporary Company Law (2012) 435 – 437.
5FHI Cassim et al Contemporary Company Law (2012) 438.

 

At-Last-Article

Since the commencement of the new Companies Act, 71 of 2008 (“the Act”), there have been different interpretations and conflicting rulings in the different divisions of the High Court with regard to the reinstatement of deregistered companies by virtue of section 82(4)1 of the Act and more specifically whether the reinstatement has retrospective effect. The decisions varied from no retrospectivity to partial retrospectivity to complete retrospectivity.

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Non-retrospectivity

If the reinstatement of a company is with non-retrospectivity any actions taken on behalf of the company during the deregistered period will be void and of no effect. The reason for this is that deregistration puts an end to the existence of a company, it brings an end to its corporate personality.2 The interpretation of non- retrospectivity is supported by Bright Bay Property Service (Pty) Ltd v Moravian Church in South Africa 2013 (3) SA 78 (WCC).

Partial retrospectivity

In Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC) the court’s interpretation of The Act, regarding the reinstatement of a company, is one of partial retrospectivity by which former assets are revested in the company’s name, but it does not validate corporate activity conducted on behalf of the company during the period of deregistration.3 The court’s reasoning for this is the fact that should the reinstatement of a company be with complete retrospectivity it can cause severe prejudice to third parties.

Complete Retrospectivity

Complete Retrospectivity means that with reinstatement of a company, the company will not only be revested with its property, but all corporate activities during the period of its deregistration will also be validated. Two previous High Court cases 4 appear to support this concept, but the issue of retrospectivity was not entirely considered in either one of them and can therefore not be seen as authority on this point.

Ruling by the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) 5 has recently ruled on the interpretation of section 82(4) of the Act on an appeal from the Western Cape High Court, Cape Town.6 The SCA considered if there is any basis for the interpretation by the High in the Peninsula case that reinstatement of a company serves to revest it with its property, but does not validate its corporate activity.

The SCA did not agree with the latter view, and was of the following opinion: ‘revesting of the company with its property can have the same detrimental effect on third parties who have in the meantime acquired rights to that property…and that refusal to validate the corporate activities of a company during its period of demise can be equally devastating to the interests of bona fide third parties who were unaware of the deregistration… The truth is that deregistration of a company bears that inherent risk’.7 The SCA further stated that potential prejudice to third parties therefore cannot render the interpretation of section 82(4) as to exclude retrospective validation.

An application to reinstate the registration of a company under section 82(4) must be advertised in a local newspaper, giving 21 days’ notice of the proposed application for reinstatement.8 Therefore third parties who might be prejudiced by the proposed reinstatement have the opportunity to prevent the reinstatement.

The SCA is further of the meaning that the wording of section 82(4) can in no way suggest partial retrospectivity and that section 82(4) has automatic retrospective effect not only in revesting the company with its property but also in validating its corporate activities during the period of its deregistration.9

The SCA further emphasized that section 83(4)(a)10 of the Act is available to prejudiced third parties and any ‘person with an interest in the company’ to apply for relief connected with the dissolution of the company, even after the company has already been administratively reinstated in terms of section 82(4).11 Thus, in the view of the SCA : ‘the legislature had intended to alleviate the prejudicial effect on third parties or even the company which may be brought about by the retrospective effect of reinstatement under section 82(4)’ of the Act.12

Reinstatement of deregistered companies in South Africa must thus be interpreted as reinstatement with complete retrospective effect, by which former assets are revested in the company`s name and full validation of its corporate activities conducted on behalf of the company during its period of deregistration.

 

1 Sec 82(4) of The Act: If the Commission deregisters a company as contemplated in subsection (3), any interested person may apply in the prescribed manner and form to the Commission, to reinstate the registration of the company.
2 Miller & other v Nafcoc Investment Holding Co Ltd & Others 2010 (6) SA 390 (ZASCA).
3 Also supported by Missouri Trading CC & another v ABSA Bank Ltd & others 2014 (4) SA 55 (KZD).
4 Amarel Africa Distributors (Pty) Ltd v Padayache (236/2011) [2013] ZAGPPHC 87; Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd & others [2014] 3 All SA 664, (218/13) [2014 ZASCA 63.
5 Newlands Surgical Clinic v Peninsula Eye Clinic (086/2014) [2015] ZASCA 25.
6 Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC).
7 See note 8 at para 26.
8 Regulation 40(7) of the Companies Regulations, GN R351 of 2011, GG34239, 26 April 2011, promulgated under the Act; Practice note issued by the CIPC GenN 204, GG 36225, 15 March 2013.
9 See note 8 at 25 para 29.
10 Sec 83(4): At any time after a company has been dissolved – (a) the liquidator of the company, or other person with an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or any other order that is just and equitable in the circumstances.
11 See note 8 at para 30.
12 Supra 11.

 

What-constitutes-fair-d-ismissal

Labour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he does renew the contract, but on less favourable terms than the employee had reasonably expected.

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Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

 

This newsletter 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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This month’s issue is all about the youth.

From the protection of children’s rights and supporting children in need, to inspiring young children by exposing them to different career options available to them.

In the spirit of this youth edition we call upon you to support our Annual Function for the Benefit of Charity; this year on behalf of SOS Children’s Villages. Read more about the event and how you can make a difference in a child’s life.

Visit our Facebook Page to see how JJR Inc. supported Cell C’s Take a Girl Child to Work initiative!

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It is quite common that South Africa has a very high mortality rate when it comes to road accidents, trauma and more specifically the death of children as passengers in motor vehicle accidents.

The National Road Traffic Act has been silent with regards to infants under the age of 3 and whether or not it is compulsory for them to wear a seatbelt. The Transport Department however has decided to give clarity on the matter and has published amendments to the National Road Traffic Regulations 2000 under the National Road Traffic Act, 1996.

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According to the amendments, each parent will have to take the necessary steps and measurements to ensure the child’s safety. Each child under the age of 3 will be required to be seated in a protective child seat and to wear a seatbelt. The Department states that due to the financial implications that this new regulation might have, it is expected to be of effect 6 months from the date of publication of the regulation.

The proposed penalty for parents and or adults transporting children without a protective child seat and or a safety belt will be determined by the chief magistrates of the different districts and their recommendations will be considered upon the making of the penalty. Parents is therefore advised to comply with the safety regulations from the start to ensure their child’s safety and to avoid prosecution.

 

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In the unanimous Constitutional Court judgment by Tshiqi AJ, Coughlan N.O v Road Accident Fund 2015 ZACC 9, the court had to determine whether foster care grants should be deducted from the compensation payable by the Road Accident Fund to foster children.

The children in this case, as represented by the curator ad litem Coughlan, were orphaned after they lost their mother when she was killed in a motor vehicle accident in June 2002. After their mother’s death the children’s maternal grandparents applied and were appointed by the Children’s Court as foster parents. The foster parents in terms of the Social Assistance Act received foster child grants for the three children. As a result of the accident a claim was lodged on behalf of the children for loss of support. The RAF admitted liability, however, it contended that the foster care grants received should be deducted from the compensation payable as failure to do so would amount to double compensation.

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The curator ad litem, Coughlan, brought the application on behalf of three foster children contending that the grants cannot be deducted by the RAF as it amounted to res inter alios acta. In the High Court case (Western Cape division) the court concluded that the foster child grants were in fact res inter alios acta and ordered the RAF to pay the proven damages. The RAF was granted leave to appeal to the Supreme Court of Appeal which subsequently upheld the appeal. The Supreme Court of Appeal concluded that the foster child grants need to be taken into account in assessing the damages to be awarded for their loss of support as it would amount to double compensation.

As this issue deals with a vulnerable group in our society the Constitutional Court was approached to decide whether the grants can be deducted. The Court (on the request of the amicus curiae the Centre for Child law) broadened the enquiry and looked at not only the foster child grants but also the child support grants and whether they are deductible from the damages awarded for loss of support.

In order to determine whether the grants (whether it is child support grants or foster care grants) is deductible, the court investigated various aspects. Firstly, the Court looked at the States duty with regard to caring for children in need and the obligation and purpose of the RAF. The State has constitutional obligations in terms of sections 27 and 28 to take care of children in need within its available resources. In terms 156(1)(e) of the Children’s Act 38 of 2005 the State can fulfil its obligation by way of foster care or youth centres with regard to the care of children who either have no parent/care-giver or the person is unable or unsuitable to take care of the children. Foster care specifically is more than mere money, and as the Court states it “encompasses parenting, love, care, nurturing, discipline and other benefits of raising a child in a family environment” Comparing this to RAF’s compensation which is simply the damages awarded for loss related to material needs. The Court concluded that is clear that the “non-monetary dimension of fostering reveals the inappositeness of comparing a grant designed to encourage fostering with compensation for the loss of a parental breadwinner.”

Secondly the Court looked at the causal link between the death and foster care as well as the fact that the grants are paid to the parent directly and not the child. It is clear that foster care is not predicated on the death of the parent but based on the child being in need of care. Furthermore, the grants as opposed to the compensation payable by the RAF, is paid to the foster parents who utilises the money for the welfare of the children.

In conclusion, taking the above mentioned factor into consideration, the Constitutional Court brought clarity to the situation and ruled that the child support grants and foster care grants should not be taken into account when an award of damages for loss of support is made.

 

1 Common law doctrine which holds that a contract cannot adversely affect the rights of one who is not party to the contract.

 

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These days so many children drop out of schools to join the working class rather than to receive a good education and to pursue a professional career. It is tempting for employers to employ these desperate young people for a lower fee than the educated individual. The BCEAA (Basic Conditions of Employment Amendment Act) indicates that it is a criminal offence to employ a child under the age of 15 (fifteen) years old except if you as the employer have a permit issued by the Department of Labour to employ a child specifically in the area of performing arts. The BCEAA further indicate that children between the ages of 15 (fifteen) and 18 (eighteen) years old may not be employed to do inappropriate work for their age or work that places them at risk. The inappropriate aspect regarding child labour mentioned above is when the tasks given are exploitative or hazardous of nature for the child’s age or detrimental to the child’s spiritual, mental, physical or moral development. Even if the child’s employment is of a desperate nature to provide financial security for his parents, it is not a ground that the employer can rely on to justify the employment of this child. The last mentioned example remains child labour and the employer can face a hefty fine or imprisonment of up to 3 (three) years.

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The employer should consider the following aspects if he intends to employ a child between the ages of of 15 (fifteen) and 18 (eighteen) years old:

  • • There should be a written contract of employment between the employer and the child’s parent or his/her legal guardian.
  • • Remuneration should be paid to the child’s parent or his/her legal guardian.
  • • The child may not be instructed to work at night (between the hours of 22h00 and 05h00) without written permission by the child’s parent or his/her legal guardian.

These are just a few aspects that the employer should bear in mind when legal child labour is required. The Department of Labour along with the Department of Education would rather see children get a well rounded education and join the working class at a more suitable age. This last mentioned vision would hopefully lead to the growth of the educated working class and less exploitation of child labour.

 

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This newsletter 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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The Constitutional Court on 11 September 2014 delivered judgment in the Turnbull-Jackson case involving an 11-year long legal dispute regarding the approval of building plans by the Hibiscus Coast Municipality. The case reached the Court as an appeal against an order of the KwaZulu Natal High Court. Pearl Star Investments 14 CC obtained approval from the Hibiscus Coast Municipality to build a three-storey block of flats. On previous occasions, Mr Turnbull-Jackson succeeded to have the approval set aside, but in 2006 he failed to set aside the most recent building plans.

He instituted a review application in the High Court, but failed once again. On appeal to the Constitutional Court he based the review of the approval on various grounds including, amongst others, bias of the building control official as well as the fact that the necessary level of compliance with section 7(1)(b)(ii) of the Building Standards Act was not met.

Section 7(1)(b)(ii) specifically deals with refusal of the approving building plans if certain disqualifying factors, such as the fact that a building can be unsightly or will derogate from the value of the adjoining or neighbouring properties, is present.

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Madlanga J (with whom Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Majiedt AJ and Zondo J concurred), dismissed each of the grounds on which Mr Turnbull-Jackson relied. The central dispute, however, addressed the two different interpretations of section 7(1)(b)(ii) of the Building Standards Act. Mr Turnbull-Jackson in his grounds for review, relied on the interpretation given to section 7(1)(b)(ii) in the Constitutional Court case of Walele v City of Cape Town and Others 2008 (6) SA 129 (CC). The municipality in turn relied on the Supreme Court of Appeal (SCA) case True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) where the SCA expressly did not follow the Walele case. The True Motives interpretation states that the local authority must only refuse to grant approval of building plans if satisfied that the disqualifying factors will in fact or probably eventuate. This differs from the Walele case’s approach requiring the local authority to approve plans only if it is satisfied that the disqualifying factors will not eventuate before granting approval. At the core of the Walele-True Motives dispute is the principal of judicial precedent, a core component of South African law. This principle entails that courts must follow and are bound to decisions of higher courts. Only the ratio decidendi, or the reason for the judgment, needs to be followed and not any remarks that have been made in passing. The question is raised whether the SCA in True Motives erred by not following the judgment of Walele. The Constitutional Court had to determine whether the interpretation of section 7(1)(b)(ii) in Walele was made in passing, and if not, whether the interpretation was incorrect. Only in those two instances the SCA could depart from the Walele decision. Madlanga J held that the interpretation of section 7(1)(b)(ii) in Walele formed part of the rationale behind the decision. The decision itself in Walele took into consideration the possibility of harm to the owner and occupants of the property to be developed, and the fact that a development may have adverse effects on the rights of owners of neighbouring properties. It is for this reason that in Walele the court interpreted section 7(1)(b)(ii) to mean that local authority can only approve plans if it is satisfied that the disqualifying factors will not eventuate. As a result Madlanga J upheld the decision as being correct and stated that in the particular set of facts of Turnbull-Jackson there was no improper exercise of section 7(1)(b)(ii). The reasons advanced by the SCA for its departure from Walele did not justify the course adopted. The SCA erred in not following the Walele decision. Madlanga J made it clear that all courts, including the SCA, are bound to follow decisions of the Constitutional Court and only in specific instances are lower courts allowed to depart from judgments. The importance of precedents was emphasised when the Constitutional Court quoted Judge Cameron who stated, “Without precedent there would be no certainty, no predictability and no coherence.”

 

labour-section copySince the Labour Relations Act 66 of 1995 (“LRA”) first came into action, the essence of the fixed term contract of employment and its existence have been questioned by both the CCMA and the Labour Court. Many Employers employed employees on a fixed term basis due to the fact that it seemed like the “easier way out” and that it supposedly meant that Employers had the power to somehow boycott the workings of the LRA, Schedule 8 of the LRA as well as the Basic Conditions of Employment Act 75 of 1997.

Employers also used these supposed fixed term contracts to their advantage by continuously renewing the contracts upon its termination, sometimes on a month-to-month basis, only to inform employees on the last day of a month that their services are not required anymore and that they should have been aware of the fact that this termination could have happened on any given time due to the nature of their employment contracts. The Labour Relations Amendment Act (“LRAA”) however, tells a different story.

The Labour Relations Amendment Act was assented by President Jacob Zuma on the 14th of August 2014 and so it proposed that the Act will be in full force before the end of 2014. The LRAA, in Section 198B, defines a fixed term contract as a contract of employment that terminates on the “occurrence of a specified event, on the completing of a specified task or project, or on a fixed date other than an employee’s normal or agreed retirement age”.

The LRAA specifically states that in the event that a fixed term contract is entered into between an employer and an employee, a justifiable reason has to be given for the nature of the contract. The LRAA refers to the following reasons as being justifiable:

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1. Replacement of another employee who is temporarily absent from work 2. A temporary increase in workload (not exceeding 12 months) 3. Student / recent graduate employed for training purposes or to gain work experience; 4. Project specific work with a limited duration; 5. Non-citizens with working permits for a specified period; 6. Seasonal work 7. Official public works and or public job creation schemes; 8. Positions funded by an external source for limited periods; 9. After the normal / agreed retirement age has been reached; 10. Any other justifiable reason. These justifiable reasons however, are not the only factor that needs to be considered when regard is being given to the new legislation for fixed term contracts. The offer, renewal and or extended offer for fixed term contracts must be in writing and must contain specific reference to the reasons as to why this is a fixed term contract, the essence of which has to be justifiable. Inference is also drawn to Section 198B(8)(a) of the LRAA wherein it is stated that an employee who is employed in terms of a fixed term contract for a period longer than three months, must not be treated “less favourably” than an employee employed on the same and or similar terms and more specifically on a permanent basis, unless there is once again a “justifiable reason” for the different treatment. A grace period of three (3) months after the commencement of the Labour Relations Amendment Act 2014 will be granted to all Employers to remedy their existing fixed term contracts of employments with employees that are not in accordance with the subsection referred to. It is also noted that an employee employed on a fixed term basis for a period exceeding 24 months, upon expiry of the contract, has to be paid one week’s remuneration for each completed year of the contract calculated in accordance with Section 35 of the Basic Conditions of Employment Act 75 of 1997. Based on the new amendments it is therefore made abundantly clear that fixed term contracts need to be entered into mindfully by Employers, as it appears as if they are here to stay and will not easily be hoodwinked.
 
sub-heading03.3 copyMost sale agreements contain the ever popular ‘suspensive condition’ and too many sellers and buyers are left wondering what these clauses actually mean. A suspensive condition is inserted into a sale agreement to the benefit of a buyer. This condition affords the buyer the opportunity to obtain bond approval within the time frame mentioned in the suspensive condition. Should the buyer be unsuccessful in obtaining bond approval, the sale agreement will lapse and become null and void. The buyer can therefore not be held liable to the seller for breach of contract if he could not comply with the suspensive condition timeously. However, if the buyer did comply fully with the suspensive condition and then decides to withdraw from the agreement, he can beheld liable for damages suffered by the seller.
Both the seller and buyer should therefore take care as to the proper wording contained in the suspensive condition. The clause should make mention of the loan amount the buyer wishes to apply for, as well as the date on which such bond approval should be in place. If the buyer intends to utilise funds from the sale of his current property for the purchase of the new property, he may insert the successful sale and registration of his current property as a suspensive condition into the terms of the new sale agreement by which new property is purchased. It is further important to note that should the buyer not comply timeously and the agreement has lapsed, but both parties still wish to proceed with the transaction, the parties must then enter into a new agreement for the purchase of the property.
 
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The National Credit Act 34 of 2005 (“NCA”) determines that any credit provider that wants to enforce a credit agreement must, under section 129, deliver a notice to a consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights in terms of the NCA. In the case of Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1 the parties entered into an instalment sale agreement for the purchase of a motor vehicle. After Mr Kubyane fell into arrears Standard Bank informed him of the default by sending a notice in terms of section 129 by registered post.
The letter was specifically sent to the postal address that Mr Kubyana indicated in the agreement
Mr Kubyana, however, failed to collect his registered post. Five weeks later the notice was returned to Standard Bank uncollected and Standard Bank continued to institute summons against Mr Kubyana. Mr Kubyana raised a special plea stating that Standard Bank had not discharged all its obligations in terms of section 129 of the NCA, as he was only made aware of the default after receiving the summons.
Mr Kubyana specifically relied on the case of Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142(CC) where, similarly, a section 129 notice was sent by registered post but was returned to the credit provider unclaimed.
Mr Kubyana based his argument on the fact that if the post is unclaimed the creditor provider has failed to fulfil their obligations in terms of the NCA. The Constitutional Court in Mr Kubyana’s case had to determine what constitutes proper delivery if a consumer elected to receive notices by way of post. In general, in order to effect delivery, the credit provider must take those steps that would bring the notice

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The Sebola case can be distinguished from the facts of Mr Kubyana’s as Sebola was successful in challenging the delivery of the notice because it was sent to the wrong post office. The notice in the Sebola case would
never have reached Mr Sebola. Mr Kubyana on the other hand merely refrained from collecting his registered post. The Constitutional Court held that when a consumer has elected to receive notices by way of post, a credit provider must prove
1.the notice was sent by way of registered mail;
2.that the notice reached the correct branch of the Post Office; and
3.that the notification from the Post Office requesting that the consumer collect the section 129 notice was sent to the chosen address.
If a creditor provider ensures that the above steps have been taken, the credit provider would have fulfilled its obligations to bring the notice to the intention of the reasonable consumer. It will then be for the consumer to provide reasonable explanations as to why the notice still did not reach the consumer.
Mr Kubyana was unable to provide a suitable explanation for his failure to collect his registered post, there was therefore no evidence before the Court showing why it was reasonable for Mr Kubyana not to have taken receipt of the section 129 notice. Standard Bank was under no obligation to employ additional means to ensure that Mr Kubyana received his notice.
The Constitutional Court determined that it is sufficient if the notice is reduced to writing and made available to the consumer at his or her nominated address. If the nominated address is a postal address the delivery must be by registered post to the correct post office. If the consumer then fails to respond to the notice, the credit provider is allowed to proceed with legal steps against the consumer.

 

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This newsletter 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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St. Valentine’s grand romantic gesture to marry young couples who were otherwise prohibited from doing so, set the bar quite high for anyone trying to top what he achieved in the name of love.

If your grand romantic gesture is moving in together, asking someone to marry you or simply planning on jumping out of a helicopter with “I love you Mary” on your t-shirt or parachute, we’ve got your back.

In this issue, we take a look at the good the bad and the contracts.

Remember while you dive head first into love, your Cupid has a briefcase and an hourly tariff to keep you from falling too hard.

Enjoy the read

JJR INC Team

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Why is it so important to have an antenuptial contract? What is the buzz all about?

If you get married with no antenuptial contract signed between yourself and your prospective spouse, you will automatically be married in community of property. This means that should you or your spouse ever be declared insolvent, both spouses will automatically be insolvent as a marriage in community of property is considered as one joint estate.

Another disadvantage for not having an antenuptial contract means that should you ever purchase a property, it has to be registered in both parties’ names and the property will automatically fall in the joint estate. You will not be able to have sole ownership of a property. You will also not be able to enter into any credit agreement without your spouse co-signing the agreement.

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Therefore, it is very wise to go and see your attorney before getting married. Your attorney will explain to you the differences between a marriage out of community of property and a marriage out of community of property with the application of the accrual system.

The following are some of the benefits, only to name a few, of having a registered antenuptial contract:

• If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
• The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;
• Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
• Spouses will not need to obtain each other’s consent when dealing with their own property.

Very important! You must sign your antenuptial contract before you get married. Ensure that you receive notification from your attorney that your antenuptial contract was lodged and registered in the deeds office after you have signed the antenuptial contract. It is an essential requirement that the antenuptial contract be lodged and registered in the deeds office within three months of signature thereof in front of your attorney. If this is not done, you will also automatically be married in community of property.

 
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"You can't put a price tag on love. But if you could, wait for it to go on sale."Hussein Nishah,

I hasten to add: “or just rent it in the meantime.” This is just how we are wired. We want the best, we want it cheap and we want it now! And hell breaks loose if anyone tries to interfere.

It’s that time of the year when you or the ones you love may be looking for a new home. Should you be in the rental market, here are a few important knots to make in your ear, before signing on the dotted line.

No discrimination may take place during either the advertising or negotiation phases. It is interesting to note that the Rental Housing Act (herein after RHA) refers particularly to age in section 4(1). Strictly speaking an advertisement can therefore not state that students need not apply or that the residence is only intended for the elderly. This can however be circumvented by simply refusing the potential tenant on another basis.

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The next few rules are, however set in stone, and cannot be waived by either a landlord or tenant:

1. Section 5(3)(d) of the RHA states that the deposit, paid to the landlord to secure the residence, must be invested against an interest rate equal to a savings account. Furthermore, at the end of the lease the initial investment and the interest there upon, must be paid to the tenant, should there be no deductions for damages. The wording of the section leaves no room for interpretation, thus the meaning is clear and concise, the deposit must be invested! No landlord may, for any reason, deny the tenant the right to have the deposit invested and must provide the tenant with proof of the investment, should the tenant request this.

2. A joint inspection by both tenant and landlord, at a time which is convenient for both parties within three (3) days prior to expiration of the lease, must take place. Should the landlord fail do to this inspection, section 5(3)(j) of the RHA provides the tenant with the right to claim his or her full deposit, including the interest, as the landlord has tacitly deemed the residence to be in a good and proper state and has no further claim against the tenant. On this note, should there be no deduction applicable, the deposit and interest must be paid to the tenant within seven (7) days of the lease’s expiration. Should there be deductions, the full amount after deductions, but including interest, must be paid to the tenant within twenty-one (21) days of the expiration of the lease.

3. The landlord is however not without remedy. An interesting provision of the RHA is that a landlord may claim compensation for improvements on the land on which the dwelling is situated, if damage caused by the tenant necessitated said improvement, according to section 4(5)(e) of the RHA.

Lastly, should you or a loved one ever experience any difficulties with a tenant or landlord, it must be noted that the RHA provides for a Rental Housing Tribunal, which can settle all rental matters quickly and cheaply. The legal processes of the Tribunal are less complex than those of the courts and also have a swifter turn-around-time.

Ultimately the old saying still rings true, especially in the rental market, “I don't understand this irony - valuable things like cars, gold, diamonds are made up of hard materials but most valuable things like money, contracts and books are made up of soft paper.” ― Amit Kalantri. Thus my advice would be: grab those reading glasses and go through your contract with a fine-tooth comb, who knows, you might have some interest coming your way!

 
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You open the front door to your house and there it is – a paradise filled with hundreds of roses, a human size teddy bear, hearts sprinkled all across your front porch, a harpist in the corner playing the soft tunes of Ronan Keating’s You say it best when you say nothing at all (oh the irony), and all that you can think of is how much time it’s gonna take for you to clean up the porch, get the harpist to stop playing and fit the teddy bear through the door so your neighbours has nothing to gossip about.

Even though Valentines Day is seen as one of the most favourable holidays of the year, some of you might have a stalker or two on your hands that you can’t seem to get rid of. This bears the question – how can you get rid of someone who is invading your space and infiltrating your life, without using a spade to hit them over the head?

The Protection from Harassment Act (17 of 2011) makes way to ensure that a victim has immediate relief against harassment. The question remains however, what is harassment? Is your admirer harassing you or is he / she just being kind?

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Harassment can include any of the following acts: unreasonable written, verbal and / or electronic communication, the unreasonable watching, pursuing or following a person, the lurking outside of a building where a person works, studies, happens to be or lives, (sounds like this is applicable to your secret stalker, or admirer… doesn’t it?), bullying, harassment of a sexual nature, etc.

Now that you have identified the conduct as harassment or possible harassment, what can you do?

The Magistrate’s Court makes way for you to obtain a Protection Order against the perpetrator who is harassing you. The Protection Order is seen as a Court Order and lists specific acts which the perpetrator may not commit. Protection Orders can be enforced by the South African Police Services and non-compliance thereof may lead to criminal prosecution.

If a Protection Order is granted, the Protection Order will be accompanied by a Warrant of Arrest. The Warrant can then be executed at any time if the perpetrator fails to obey the Protection Order. You as the victim can therefore hand in the Protection Order together with the Warrant of Arrest at the nearest SAPS, who will then enforce the Protection Order. A Protection Order is valid for a period of 5 years.

But what if you don’t know who the secret admirer is who is harassing you? Can you still obtain a Protection Order? The answer is yes. The Court will bear all the circumstances in mind when making such an Order. If for instance, the harassment is taking place in the form of electronic mail, the Court can make an Order to prohibit the service provider from allowing communication to be forwarded by the perpetrator to you as the victim.

So if you were afraid of being harassed this Valentines Day, remember that you have options and the law on your side. You don’t have to tolerate endless mixtapes and telephone calls asking you what you are wearing and if you are available tonight. Be smart, get a Protection Order.

Consult with your lawyer about the process involved in obtaining a Protection Order or an Interim Order.

 
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This newsletter 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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Dear All

We hope that you enjoyed the festive season with your family and friends, and that you are excited and ready for the year to come!

May your year be filled with new beginnings and may you also inspire new beginnings for others.

We look forward to new beginnings and new partnerships with you.

JJR Inc. Team

Artikel-1

In this day and age more unmarried couples are opting to live together, be it before marriage or instead of it. The majority of them live under the illusion that they will automatically enjoy the same legal protection as married couples; that if they stay together long enough they will in the eyes of the law be seen to have entered into a common law marriage.

This is unfortunately not the case. Unlike a marriage or a civil union, cohabitation is not regulated by legislation. The legislator did see that there was a need for change, and in 2008 the Domestic Partnership Bill was drafted, but sadly has not been given the green light. In accordance with this bill partners would have enjoyed equality and dignity as set out in the Constitution.

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Currently, cohabiting partners are at risk should the relationship end. If one of the partners pass away the remaining partner will not be able to inherit if the deceased partner died without a valid testament. The long-living partner will also not be able to rely on the Maintenance of Surviving Spouse Act. There is also no obligation on either of the partners to pay maintenance to the other during the relationship, therefore neither of the partners will be able to claim maintenance after the relationship. The partner in whose name the assets and property is registered will be the one to keep same and there is no obligation on them to share or distribute it.

Partners living together can enter into a cohabitation or life partner agreement. Such an agreement will be legally enforceable and binding as long as it adheres to the requirements of a normal contract, for instance both parties must have consensus and the contract cannot include anything illegal. In this agreement partners can regulate the obligations they will have towards one another as well as the consequences should the relationship come to an end. Each one of these agreements will differ depending on the unique needs and situation of every couple, but below are some points to ponder and include:

1. The home you share;
2. The movable property brought into the relationship and acquisition of same;
3. Termination of the relationship;
4. Maintenance in the case of termination;
5. The cost of running the household.

Until the above mentioned bill is promulgated, one of these agreements is the best way to protect your assets and save you a lot of court room drama and costs, even though it does not seem very romantic.

 

Artikel-2

The Festive season, filled with joy and sheer childlike anticipation to open the presents underneath the Christmas tree; anticipation that suddenly disappears when you first glance at the pink rabbit fur poncho which your aunt has given to you, horror quickly stifled by a thank you and an award winning smile.

With the Festive season gone, you and your pink rabbit fur poncho seem to be stuck together. Alas there is some hope, as many stores do take returns for those unwanted gifts, but stating that it is your legal right to return the poncho, might however be stretching the truth…

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The Consumer Protection Act 68 of 2008 (“CPA”) was enacted to, amongst others, promote and ensure consumer protection from unfair marketing practices. The fact that your aunt has limited knowledge of fashion (or your taste) and that suppliers should in general not be manufacturing rabbit fur ponchos, cannot however be considered an unfair marketing practice. There is no general right of return but the CPA does provide for instances where goods can be returned.

Firstly, section 16 of the CPA specifically provides for a consumer’s right to a cooling-off period after direct marketing. The consumer may within 5 business days after the transaction or the goods were delivered rescind, or cancel, the transaction. The supplier must in terms of the section return the payment within 15 business days.

Secondly, section 20 (read with section 19) deals with a consumer’s rights to return goods which extend to four specific circumstances, including:

• Goods bought as a result of direct marketing;
• Goods which the consumer could not inspect before delivery and which is rejected for reasons listed in section 19(5) including that the goods are not the type or quality reasonably contemplated in the agreement ;
• Goods were delivered mixed with other goods which were refused;
• Goods that do not satisfy the particular purpose for which they were bought if that purpose was communicated to the supplier.

What rights do you have as a consumer?

The right to return in terms of section 20 is only available for a period of 10 days. The section does not apply in instances where public health prohibits the return, or where the consumer has physically altered, or combined the goods with other goods or property.

Section 20 should be read with section 55, in particular section 55(3) dealing with goods that must satisfy a particular purpose as well as section 56 which deals with an implied warranty of quality.

A consumer may within 6 months after the delivery of any goods to a consumer return the goods if it fails to satisfy the requirement and standards in section 55 of the CPA.

In the case of online stores the Electronic Communications and Transactions Act (ECTA) will be applicable, providing a 7 day cooling off period after the delivery of the goods. All stores must ensure that their return policy is in line with the CPA and ECTA (in the case of online stores). Consumers must also be weary that goods cannot always be returned any time and under any and all circumstances, sometimes the pink fur rabbit poncho will continue to act as a souvenir of Christmas 2015…

 
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This newsletter 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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The festive season is upon us and the end of the year is in sight. From all of us here at JJR Inc. Attorneys, we would like to wish you a season of sparkle and shine. May all your wishes and dreams come true and may you, during this season of giving, take the time to slow down and enjoy the simple things.

In this newsletter we take a look at how to handle noisy neighbours this December holiday and also what to look out for to protect your rights when you visit an amusement park over the holidays.

We thank you for your support during the year and wish you all the best for 2016.

JJR Inc. Team

Artikel-1-December

As the festive season draws near, everyone is preparing for a time where families and friends get together in celebration. But what we often forget is how our festivities impair and infringe on our neighbours’ rights. But it may also occur, that we are on the receiving end of noisy neighbours. These competing interests are governed by an area of our law known as “neighbour law” and more specifically the branch thereof dealing with nuisance.

A good starting point is the premise in common law that allows everyone the undisturbed use and enjoyment of their own land as long as they comply with legislation, regulations and by-laws concerning their land.

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We first need to draw a distinction between the two types of noises that exist in our law.

First we have “Disturbing Noise”. This noise is measured objectively and is defined as a scientifically measurable noise level. This is your general noise you would find at a party. This noise is often regulated by municipal by-laws and is often the rules/law that we are aware of. The quickest remedy is often a call to your local Police Station. Should this noise however, persist this disturbing noise could become a noise nuisance.

“Noise Nuisance” is a subjective measure of noise and defined in the Nosie Control Regulations of Gauteng, 1999 as any noise that disturbs or impairs, or may disturb or impair the convenience or peace of any person. This type of noise is governed mainly by the Environmental Conservation Act, 1989 (Act 73 of 1989) and the Noise Control Regulations governing your specific province. A comprehensive list of noises that are considered as Noise Nuisance can be found in the aforementioned regulations. They include, but are not limited to, loud music from a radio or a musical instrument, noise from an animal, noise emanating from fireworks, noise from construction work etc.

Transgressions of the provisions in the Regulations are considered a criminal offence. The penalty attached to the transgression is that the accused can be fined up to R 20,000.00 or imprisoned for up to 2 years, or both, if found guilty or admits guilt. Note that it will result in the accused having a criminal record.

A person whose convenience or peace is disturbed may lodge a complaint with the relevant Department. An official from the Department will issue a statutory notice and same will be delivered to the person disturbing your peace or convenience. Failure by the person creating the noise nuisance to comply with the statutory notice could result in criminal action. This notice is often the first step in instituting legal action.

It must be remembered that in order to show that a noise nuisance does in fact exist it must be proved that the certain noise was intolerable or seriously affected your enjoyment of your property.

Should the above remedy fail, and the person continues to cause a nuisance, one could approach the court and apply for an interdict. The Courts in considering such an application will consider the following:

• Type of noise
• Degree of persistence
• Where the noise occurred
• Time when noise is heard
• Efforts made to resolve the matter.

It must be noted that this article only acts as a mere guideline and each case must be examined on its own merits. It is for this reason that it is often best to consult with a legal representative on what is the best way forward. Should you require further information or alternatively wish to enforce your right to a peaceful festive season, kindly contact our offices to arrange your consultation.

 
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Are you planning on visiting an amusement or waterpark this December Holiday? Or going on some kind of adventure tour? Read before you sign an indemnity and be inquisitive if something does not look right.

At amusement parks there are usually disclaimer notices next to the ticket offices, excluding liability for negligence on the part of the park owner. The person making use of the services / rides will be bound by the disclaimer / exemption clause if the below requirements (some of which are also prescribed by the Consumer Protection Act1) are met:

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1. The consumer must be aware of the disclaimer;
2. If the consumer was not aware of the disclaimer, he or she will still be bound by it if it was so visibly displayed that it can be assumed that he or she must have been aware of it;
3. For the disclaimer to be noticeable it must be more or less on eye level; in big enough writing and in a place that such a sign would usually be found or where it would attract the attention of an ordinarily alert consumer;
4. The notice must be expressed in plain language;
5. The consumer must be alerted to the notice before he or she enters into the contract or before he or she is expected to pay for the goods or services in question, whichever happens first.
6. The consumer must be given sufficient opportunity to understand the content of the notice.

Although an indemnity or a disclaimer notice does not necessarily take away your right to sue, there are previous case law2 leaning towards exactly that. In the Botha-case, Mrs Botha and her daughter were flung from a ride in the park after a freak mechanical failure occurred. The court dismissed the claim and held that Mrs Botha could not sue the park as she indemnified the park against any liability. Although Mrs Botha could not recall that she saw the disclaimer notice (“…they are absolutely unable to accept liability or responsibility for injury or damage of any nature whatsoever…”) she should have been aware of such notice. The court found that the notice was prominently displayed at a place where one would ordinarily expect to find such a notice and that any reasonable person approaching the ticket office could hardly have failed to observe the notices; and that the existence of such a notice would not be unexpected by a reasonable patron. The court ruled that Mrs Botha therefore should have seen the notice when she bought the tickets and could therefore not sue the park for injuries sustained.

An exemption clause is usually strictly construed and thus if the wording permits such an interpretation for exemption to the giver of the notice it will be from the least degree of blameworthiness, which is ordinary negligence and not gross negligence. For instance if you buy tickets for a ride after exempting the park (agreeing not to sue for any loss, harm or injury) but the operator of the specific ride did not fasten the seatbelts before he started the ride and you consequently fly out of the ride and sustain serious injuries, it will be unfair to say one is not allowed to sue as these actions come down to gross negligence. Indemnities do not take away one’s responsibilities as the giver of the indemnity towards the person indemnifying the giver, it will only make your case as owner / organiser stronger and it does not automatically take away the injured party’s right to sue. The injured party will however still need to prove the degree of negligence on behalf of the park owner.

So think twice before you buy tickets at an amusement park and make sure that there is a notice board that is visible / within eye-level and that you understand the content of the disclaimer.

 

1Act 68 of 2008

2Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA)

 
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This newsletter 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.

Header Banner dfsg Dear All

It is the month of “Movember”. A month dedicated to a cause instituted to create awareness and urge men to get tested for prostate cancer. Men (and women at times) all over the world partake in this cause, leading to upper lip hair growth.

So have you started growing your moustache? Are you keen to participate, but you are worried you might get into trouble with your boss? In this Newsletter we will discuss whether an Employer may discriminate against an employee and withhold him to exercise his right to grow facial hair in accordance with his cultural or religious beliefs.

We further give some guidelines and advice on fixtures and fittings onto property, for those of you who are thinking of selling your house, restaurant or bar and wondering whether you may take everything with you…

Enjoy the read!

JJR INC Team

Can-I-be-dismissed-for-growing-a-moustache-during-the-month-of-November-

The month of November is known internationally as “Movember” – a cause instituted to create awareness and urge men to get tested for prostate cancer. Men (and women at times) all over the world partake in this cause, leading to upper lip hair growth supposedly showing manliness.

The question arose however, ‘can I be dismissed for growing a moustache if the moustache does not correlate with my company’s image?’. Men and women alike dream of making radical changes to their appearance all the time, yet most people in a professional area of work are cautious when considering such a drastic change. Which bear(d)s us with the question: May I grow a moustache this Movember? We moustache(sk) the labour laws this question.

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The Employment Equity Act 55 of 1999 as amended (EEA) provides protection against any employee by prohibiting unfair discrimination in the workplace. This basically boils down to the fact that no person may discriminate against an employee based on their race, gender, sex, pregnancy status, belief, political opinion, culture, etc. The question is, will a radical change in your physical appearance provide your employer with some kind of a remedy and a reason to dismiss you or to force you to change your physical appearance to what may or may not be a better fit for the company?

In some cultures and religions, growing a beard and or a moustache is a requirement to show for example marital status and in some instances even social standing. Our democratic state and the Constitution allows the citizens of South Africa to engage and practice their culture and beliefs insofar as it is compatible with the Constitution and other relevant laws to do so, and insofar as it is deemed to be both reasonable and fair. Withholding an employee of exercising his right to grow facial hair in accordance with his cultural or religious beliefs is therefore seen as unfair discrimination under Section 6(2)(b) of the EEA read together with Section 9(3) of the Constitution of South Africa.

The legislature states however that it is not unfair discrimination to “distinguish, exclude or prefer any person on the basis of an inherent requirement of a job”.1 Which raises the question: “Is a society based ‘neat and cleaned up look’ an absolute requirement or even an inherent requirement of a job?”

Does your physical appearance have an influence on your competence to do certain tasks and / or does it influence your qualifications and your ability to perform duties? No. It most certainly does not. However, an employer is faced with client preferences and good quality service, a culture that is sometimes undeniable and is a factor when determining company growth and target groups.

Stereotyping and judgement will always be factors that will in some cases even distinguish one possible candidate for a job from another. Fortunately however, when regard is being had to the provisions of the EEA and the Constitution, it appears as if you cannot be discriminated against based on your physical appearance. Unfortunately, we cannot prohibit people from exercising their right to form their own opinions about others (where the opinion is kept to themselves and does not have a negative impact another person).

So if you still haven’t started with that moustache or beard, get to it. Not even your boss can stand in your way. Unfortunately, we can’t necessarily say the same about your significant other.

 

1 Section 6(2)(b) of the EEA

 
Fixtures-and-Fittings-

Often during the course of the sale of a property, the question arises, whether or not something is a fixture or fitting onto the property. A good example can be Bar Stools. May you, as the Seller remove your Bar Stools from the property and use it in your new home?

This question has been cleared up by the Court 1 and a few guidelines were established:

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1. Does the object have the character of being part of the immovable property?
2. Has the object been attached by a physical connection?;
3. Was it the intention that the object should remain permanently attached to the immovable property?

The third factor is the most important factor to consider when making a final conclusion.

If we look at the Bar Stool example, it was decided by the court 2 that if the item is necessary for the effective use and utilization of the immovable item (the bar itself) then it cannot be removed. The Bar Stools obviously has the character of being part of the bar and although the barstools are not physically attached to the Bar, the Bar would not function properly if there are no stools. It is the intention of Bar Stools to serve the bar.

To avoid any disputes between the seller and the purchaser arising during the course of the transfer procedure, the starting point would be that the seller specify in the offer to purchase what items are to be excluded as a fixture and a fitting. This will ensure that there is clarity as well as an agreement between the parties beforehand and avoiding a situation where the seller removes certain items from the property.

 

1 MacDonald Ltd v Radin NO and The Potchefstroom Dairies and Industries Co Ltd 1915 AD & The Potchefstroom Dairies & Industries Co. Ltd., S.A.I.R. (1915) AD 454 EEA

2 Senekal v Roodt 1983 (2) SA 602 (T) at 609D-H

 
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This newsletter 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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Dear reader

This month’s theme is claims. In this newsletter we will discuss different contractual and delictual claims that are becoming more relevant these days.

Medical negligence and Road Accident Fund claims are two areas of the law that is on everyone’s lips.

Medical negligence claims are going through the roof. Statistics show that medical negligence claims have increased with approximately 250% in the last five years.

Road Accident Fund claims on the other hand are still relevant and claims have escalated due to the process being simplified and the middleman being cut off. Individuals can claim from the fund directly without the assistance of an attorney. The role of an attorney in these claims is however still an absolute necessity when proving merits and quantum and ensuring that an optimal amount is claimed and obtained from the fund.

Have you heard? Your insurer cannot refuse to pay out a claim on the basis that you haven’t disclosed every scratch or ding on your vehicle. This article is a must read for all insured motor vehicle owners.

Enjoy the read!

JJR INC TEAM

Wrongful-Pregnancy

The sanctity of life argument has (as per the Honourouble Judge Louw in the Stewart v Botha case) eroded in many instances. In the event that the mother of an unborn child is informed that her child will suffer from a serious medical condition or congenital disability she has the right to terminate the pregnancy. What happens if the medical practitioner fails to assess the high risk of abnormality in the foetus?

Firstly it is important to understand the different claims that can occur with regard to pregnancy and birth. In the Friedman v Glicksman case the difference between wrongful pregnancy, wrongful birth and wrongful life was defined. Wrongful pregnancy refers to cases where a healthy (or unhealthy) child is born and the parents institute a claim for damages they suffered as a result of giving birth to an unwanted child. This claim typically arises where a sterilization procedure was performed incorrectly. Wrongful birth refers to claims by parents who state that they would have terminated the pregnancy had they been properly advised of the birth defects/ the congenital disability. Lastly wrongful life claims are brought by the child on the basis that the doctor’s negligence has caused the birth of the disabled child and as a result pain and suffering is attributable to the life.

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The claim for wrongful pregnancy and wrongful birth have both been recognised in South African law and is governed by common law principles. Claims can be based in either contract or delict. The parent seeking damages in a wrongful pregnancy or birth actions must prove that there was (1) a patient-doctor relationship between the parents of the child and the medical practitioner; (2) the breach by the medical practitioner of his or her obligations in terms of the agreement and/or negligent failure to perform a sterilisation procedure or to disclose to the prospective parents the risk of having a child with genetic or congenital disease; (3) the parents suffered harm or damages and (4) that the medical practitioner’s breach of agreement or negligent conduct caused the harm.

The damages claim in the case of wrongful life, however, differs. A potential wrongful life claim can only be based on delict and in the Friedman case it was held that there can be no claim of wrongful life as the doctor owes no duty to the child to give the child’s mother an opportunity to terminate the pregnancy, and it is impossible to calculate damages, being the difference between an impaired life and no life. In the recent Constitutional Court judgment of H v Fetal Assessment Centre the Court has referred the case back to the High Court to consider the delictual claim of wrongful life. It remains to be seen whether the Courts will develop the common law in order to include the claim for wrongful life.

Wrongful birth and wrongful pregnancy claims evokes many moral debates and parents who are considering instituting claims need to consider not only the legal requirements but also the psychological impact it can have on a family. A claim based on wrongful pregnancy could for example be considered to negatively affect the child if the child thinks that he or she is an unwanted mistake. Instituting a claim for wrongful birth and wrongful pregnancy is available to parents and can assist them with the financial burdens and losses, but the decision to institute the claim should not be entered into lightly.

 
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Imagine you pop into the shop quick to buy the necessities. You emerge, and low and behold someone scratched your beloved vehicle. There is no one around and you do not know who did it. Your mind quickly jumps to the inevitable, should we inform the insurance company about this? And if your insurance company offers you a reward for not claiming, as quite a few nowadays do, will this adversely affect it? If you do not inform your insurance company about this incident, will it affect any future claims that you might lodge with them?

Recently, a full bench of judges in the High Court, Kwazulu-Natal Division decided on just this.1 In this matter the insured claimed for damages suffered to his vehicle because of a collision that amounted to just over the R 600,000-00. His insurance company investigated the incident and when he was interviewed by an insurance investigator with regards to previous incidents he was involved in, two previous unreported incidents came to light. The insured paid for the repair of the damages himself in both incidents. One of the incidents involved a third party and the insured paid for his damages to be repaired as well. Therefore, instead of standing the chance to lose his “reward” the insured rather opted to absorb the damages to his own vehicle and that of the third party. His insurance company repudiated the latest claim due to the non-disclosure of his previous incidents.

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The Court mentioned that this particular insurance company “rewarded” their clients for not claiming. This was one of the reasons stated by the insured why he did not lodge a claim for either of the previous unreported claims. Furthermore, he also thought that the damages suffered in both incidents would have been less than his excess payment. In one of the incidents the insured thought that the damages would be less than his excess. When he found out that the damages would far exceed his excess, it was too late to lodge a claim in accordance with his insurance policy that stated that a claim or any incident that can lead to a claim by a third party has to be reported to the insurance company immediately or no later than 30 days after said incident.

The court found that the obligation to report a claim or incident only arises if the insured wishes to be covered for the loss by their insurer and that it would be in bad law to repudiate the latest claim because of the non-disclosure of the previous incidents.

The implication that this judgement has on consumers is that if they do not want their insurance to cover them or be covered for third party liability for a specific incident they do not have to inform their insurance company of every little ding and scratch and the insurance company cannot then repudiate future claims because of it. Consumers should read their insurance policies very carefully before they sign it, and make sure that they stick stringently to the provisions in it. Even if they state to be in plain language, always make sure that you understand each and every provision.

 

1 Jerrier v Outsurance Insurance Company Limited (AR 4160/2010) [2015] ZAKZPHC 34

 
ROAD-ACCIDENT-FUND-CLAIMS

In light of the recent deliberations and accusations of attorneys working on a contingency fee basis and the repercussions thereof, clients are more careful when entering into fee agreements with attorneys.

The information programme, Carte Blanche, also made waves for all attorneys out there wishing to engage in contingency fee agreements with clients. The question remains however, what is the right choice for you as a client? Is legal representation detrimental in RAF claims?

Is it common cause that lodging a claim at the Road Accident Fund can be done by the claimant in his / her personal capacity without any legal representation. Other avenues can also be pursued, i.e. claiming through an attorney or visiting the Courts to assist with the determination of the amount of damages claimed by using expert witnesses and eyewitnesses to contend as to why the claimant’s claim must be successful.

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The following is required to lodge a claim at the Road Accident Fund:

1. RAF 1 / Form 1 has to be completed (this form sets out the particulars of the vehicle, the basic information of the parties in the collision, etc.)

2. An affidavit must accompany the RAF 1 / Form 1, which sets out the following:

a. Full particulars of the accident;
b. Statements of witnesses;
c. Police reports;
d. Hospital and medical records;
e. Vouchers and documents in support of amounts claimed.

3. RAF 3 / Form 3 to be completed by the drivers involved in the collision.

4. In the event that general damages are claimed, a RAF 4 has to be lodged (Serious Injury Assessment Report).

Even though claiming through the Fund directly remains a viable option for a prospective claimant, it has to be noted that the intervention of an attorney and the courts can assist with bringing the matter to finalization and to prove damages more effectively than lodging the claim at the Fund directly.

The only thing standing in the way of a client seeking legal representation can or may be that it may be a costly exercise, especially when regard is being had to the fact that High Court litigation may take up to 3 years to reach finalization.

The Contingency Fee Act, 1997 permits that a contingency fee of 25% is permissible for work done, specifically for RAF cases. This Contingency Fee Agreement therefore allows that an attorney be paid an amount equal to 25% of the total amount claimed, upon the finalization of the matter. Contingency Fee Agreements therefore works on a “no win, no fee” basis, ensuring that the client gets the required assistance by not placing a financial burden on the client’s shoulders whilst the client is dealing with recovery from his / her injuries.

How can you make sure that a Contingency Fee Agreement is in line with the Contingency Fee Act and is legal and binding?

1. The agreement must be in writing and signed by both the client and the attorney, and where applicable, by the advocate appointed;

2. The agreement must state the proceedings to which this agreement relates and must state that, prior to the agreement being entered into, the client:

• Was advised of any other alternatives of financing the litigation;
• Was informed that in the event that he / she is unsuccessful in the proceedings, that he / she might be held liable for costs on a party and party scale to be paid to his / her opponent in the proceedings;
• Was informed that he / she will also be held liable to pay the success fee in the event of success;
• Understood the meaning and terms and conditions of the agreement.

3. What will be regarded by the parties as success or partial success and the circumstances under which the attorney’s fees and disbursements pertaining to the matter are payable;

4. The amount which will be due, the consequences which will follow in the event of partial success and in the event of premature termination of the agreement;

5. The amounts payable or the method used when calculating the amounts payable;

6. The manner by which disbursements incurred by the attorney will be dealt with;

7. That the client will be afforded the opportunity to withdraw from the agreement within a period of 14 days, calculated from the date of the agreement, provided that the attorney will be entitled to payment of any fees and disbursements incurred to date, calculated on an attorney and client basis;

8. The manner in which any proposed amendments to the agreement will be dealt with;

9. A copy of the agreement shall be delivered to the client on the date on which the agreement is signed.

It is therefore quite pertinent to note that legal representation will assist in finalizing a RAF claim expeditiously, and entering into a Contingency Fee Agreement, when such agreement is in line with the Act, can be beneficial to a prospective claimant to ensure that you get the assistance you require.

 
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This newsletter 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.

 

Header Banner dfsg I am every woman

Most people postpone the drafting of a will. It is understandable, because most people do not like to think about death. But death is inevitable, and when it comes will your loved ones be taken care of?

Don’t postpone. Select the recipients of your estate today or the laws of intestate succession will select it for you...

In this Newsletter we will be looking at the importance of a will as well as the requirements and formalities of a valid will.

Enjoy the read and contact us when you are ready to take the next step!

"Death is inevitable. Life is inevitable too. However, the timing is somewhat flexible."
- Amelia Mysko

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One of life’s utmost certainties is death. It is never too early to start thinking of a will to protect your current and future loved ones. A will ensures that one does not place a burden on the ones left behind. It further ensures that all of your assets will be distributed amongst your heirs according to your wishes, and gives you the opportunity to nominate a reliable person as your executor that will make sure that your loved ones are taken care of after your death.

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The following issues should be borne in mind when drafting a will:

  • • Who the executor should be;
  • • Creating of a trust to support your spouse and children;
  • • How your liabilities will be covered;
  • • Guardianship for the minor children (if applicable);
  • • How to approach tax (and not to avoid it);
  • • Who your beneficiaries should be;
  • • To indicate whether you are an organ donor or not;
  • • Specific provisions for important medical decisions (i.e. under which circumstances life support should be terminated).

It should be noted that once a will has been drafted it should be revisited on a regular basis due to the possible change of beneficiaries, in the event of divorce or death, a change in your financial position, or in the case of nominating another executor.

A will should not be seen as the deceased ruling from the grave, but rather as a way for the deceased to ensure that loved ones are taken care of in the future; that a reliable person as executor will fulfill the wishes of the deceased; that any debts are taken care of rather than it lurking like dark shadows over the ones left behind. It also makes the administration process of the estate a lot easier for the executor and it prevents the estate from falling under the laws of intestate succession.

So make an appointment today to see one of our legal experts to ensure that all the factors mentioned herein are covered, that your loved ones are taken care of and that your wishes be fulfilled…sooner rather than later.

 

Do-I-have-a-valid-will

It is very important to know that your will has to comply with a few formal basic requirements in order for it to be valid 1. If the will is found to be invalid, the Intestate Succession Act 2 will come into operation and the assets are distributed in a definite order of preference among the heirs. In order to ensure that your belongings are distributed to the ones your love; make sure that your will meets the following formal requirements:

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1. The will must be signed at the end thereof by the testator;

2. The signature must be made by the testator himself;

3. The testator must make his signature in the presence of at least two competent (older than fourteen years) witnesses;

4. The testator and witnesses must all be present at the same time when signing;

5. The witnesses must also sign the will in the presence of the testator;

6. If the will consists of more than one page, each page other than the page on which it ends, must be signed by the testator and witnesses;

7. If a testator signs by using a mark as a signature, a magistrate, justice of the peace, commissioner of oaths or notary public certifies at the end thereof that he has satisfied himself as to the identity of the testator and that the will, so signed, is the will of the testator, and if the will consists of more than one page, each page other than the page on which it ends, is also signed, anywhere on the page, by the magistrate, justice of the peace, commissioner of oaths or notary public who so certifies;

8. If any deletion, addition, alteration or interlineation is made, the following is required:

a. The Testator must identify and sign next to any deletion, addition, alteration or interlineation;

b. Such signature must be made by the testator in the presence of two competent witnesses who are all present at the same time;

c. The witnesses must identify and sign next to any deletion, addition, alteration or interlineation, in the presence of the testator and each other and at the same time;

d. If the deletion, addition, alteration or interlineation is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a magistrate, justice of the peace, commissioner of oaths or notary public certifies on the will that he has satisfied himself as to the identity of the testator and that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.

 

1Wills Act 7 of 1953, section 2
2Act 81 of 1987

 

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This newsletter 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.

 

Header Banner dfsg I am every woman
I am the hands that nurture the earth
I am the reason children understand their worth
I am courageous, I am compassionate and brave
I am everything, but I am no one’s slave
I have fought battles, sometimes without using my hands
and where forgiveness fails, my grace softly lands
I am black, I am white, I am grey
For sinners and saints alike, I pray
I sow, I stitch, I mend
I sometimes wear makeup and I sometimes pretend
I am strong, I am weak, I am me
I have fought hard to be free

and to deserve my rightful place in society.

This month’s newsletter is a tribute to all the wonderful women of South Africa.

We salute you.

JJR INC. Team

You-strike-a-woman,-you-strike-a-rock!-(Melcom-Oosthuizen) While researching various topics relating to Women’s month I stumbled upon the title, a struggle song, with specific relevance to Women’s day and as a result core to our country’s history. It was on the 9th of August 1956 when over
20 000 women of all races marched in protest to the “pass laws”. The phrase resonates deep emotional connotations regarding the backbone of our society, our women. Sadly, the words bear so much more truth when you consider that South Africa has one of the highest incidences of abuse against women in the world. Even though the month of August is known as Women’s month, this article remains relevant to all persons suffering from or involved in any form of abuse.

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WHAT IS DOMESTIC VIOLENCE?

Often we incorrectly interpret the phrase ‘domestic violence’ to consist of only physical abuse, but this is not entirely true. In terms of the Domestic Violence Act 116 of 1998 domestic violence has been given a broad definition and incorporates all of the below mentioned acts:

  • • Physical abuse;
  • • Sexual abuse;
  • • Emotional, verbal and psychological abuse;
  • • Economic abuse;
  • • Intimidation;
  • • Harassment;
  • • Stalking;
  • • Damage to property;
  • • Entry into the complainant’s residence without consent, where the parties do not share the same residence; or
  • • Any other controlling or abusive behaviour towards the Complainant.

WHO CAN APPLY?

It must further be pointed out that the protection afforded above is not just applicable to married couples, but to their children, unmarried couples, parents, siblings and all other persons sharing a living space. The only requirement is that the respective parties must share a living space. The act makes provision for one exception, namely entry into the complainant’s residence without consent, where the parties don’t share the same residence.

WHAT KIND OF PROTECTION CAN BE CLAIMED?

The Complainant can ask for various remedies. The remedies are completely set out in Form 2, which is discussed hereunder. Examples of the remedies include:

  • • Not to commit an act of Domestic Violence or get the help of another person to commit same;
  • • Not to enter the shared residence, or specific part of the shared residence;
  • • Not to enter the Complainant place of employment;
  • • Not to prevent the Complainant, or any other person who ordinarily lives in the residence from entering or remaining in the shared residence;
  • • Seizure of the Respondent’s weapons;
  • • Collection of the Complainant’s property from the shared residence;
  • • Payment of emergency monetary relief;
  • • Refusal of contact with the minor children;
  • • The physical address of the Complainants residence not to be disclosed to the Respondent.

HOW DO I APPLY FOR A PROTECTION ORDER AND ENSURE MY PROTECTION?

The procedure for obtaining a protection order is a rather simple procedure designed to assist members of the public. All relevant forms can be found on http://www.justice.gov.za/forms/form_dva.htm, and can be completed with relevant ease. In order to initiate the proceedings, the Complainant (the person applying for protection) must complete Form 2 and submit same to your nearest Magistrates Court in the area where you live or work.

THE PROTECTION FROM HARASSMENT ACT, ACT 17 OF 2011

Another problem that many people face is the act of harassment. The Act defines ‘harassment’ as either direct or indirect conduct that either causes harm or inspires the Complainant to reasonably believe that harm may be caused. The conduct includes the following:

  • • Watching, pursuing or accosting of the Complainant or someone in a close relationship with the Complainant such as a spouse or family member;
  • • Loitering outside or near the building or place where the Complainant or related person lives, works, studies or happens to be.
  • • Verbal communication aimed at the Complainant;
  • • Sending, delivering or causing the delivery of letters, packages and e-mails; and
  • • Sexual harassment which is further defined as “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome.

The procedure to follow in cases of harassment is extremely similar to the procedure of Domestic Violence. The relevant forms can be found on http://www.justice.gov.za/forms/form_pha.html.

CONCLUSION

Both the Domestic Violence Act and the Protection from Harassment Act have made huge strides with regards to advancements in Women’s rights in South Africa. Despite this fact, there are still many people who are unaware of these Acts, the specially designed Courts and the protection afforded in both the Acts. It is important that this knowledge be shared and that we as the citizens of this country make a stand as no form of abuse should be tolerated no matter the persons gender, race, religion or position in society. Women remain pivotal in our society and key to the success of our nation in future and remember Wathint' Abafazi Wathint' imbokodo!

 

Cohabitation-Relationships-(Chazanne-Grobler)

Marriage is an institution of great legal significance, yet cohabitation relationships (also referred to as domestic partnerships) are becoming more prominent in our society. Many women find themselves in the precarious positions of partners not wanting to tie the knot or only hearing the promises of wedding bells. For other women entering into a cohabitation relationship is simply a personal choice. Whatever the reason may be for the domestic partnership, cases such as Volks N.O. v Robinson demonstrate that many women are left destitute after the cohabitation relationships end. This begs the question: Does cohabitation relationships leave women vulnerable?

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Many domestic partners are under the misconception that living together as “husband” and “wife” for an extended period of time results in a common law marriage with all the associated rights including spousal maintenance and proprietary interests. In South Africa common-law marriages are not recognised and no legal protection is afforded to domestic partnerships. The attitude towards cohabitation relationships or domestic partnerships is aptly described in the dissenting judgment of Sachs in Volks NO v Robinson and others where he states that,

“Yet there can be no doubt that many prejudices of the past linger on, particularly against women who are seen as not conducting their lives in a manner befitting their culture or religion. A certain degree of conventional disdain coupled with moral disapproval is still directed at unmarried couples. By the very nature of their unconventional relationship they are regarded as either immoral, irresponsible or defiant. This will be irrespective of the actual degree of commitment, seriousness and stability of their family relationships.”

Cohabitation relationships take on the characteristics of a marriage and women often become the caregiver of the household leaving them economically dependent on their partners. After the relationship ends, these women suffer serious hardships and unlike married women are left without any the legal protection. The end of a cohabitation relationship does not always end in hardship but can place partners, especially women in a vulnerable position. Despite no legal protection being afforded to domestic partnerships per se private law remedies can be utilised to attach consequences to a relationship. The private law remedies include, inter alia, a universal partnership, concluding a domestic partnership agreement, or the creation of a trust. These remedies do not address all of the complexities involved with the ending of relationship as compared to the remedies available to married couples. Until the draft Domestic Partnership Bill of 2008 is enacted serious consideration should however be given to entering into a written agreement or creating a trust to protect your interest.

 

1 Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC).

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This newsletter 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.

 

Banner-Top-(July-2015) dfsg

Are you starting up your own business?

In this issue we are going to touch on some important aspects to be aware of when you have a company / starting up your own business. For instance: who may be appointed as directors and who are disqualified to be directors; what to take into consideration and which processes to follow when dismissing an employee; what your options are as company or any person with an interest in a company, when that company has been deregistered or reinstated after deregistration and you are being prejudiced by it.

Make sure you are aware of the possible obstacles of having your own business and know your options and rights!

Who-may-be-appointed-as-director

Certain people are not eligible to be appointed as directors of a company. In this article we look at who is disqualified from being a director as well as the effects of the actions of such persons while still acting as director.

A company must not knowingly permit an ineligible or disqualified person to serve or act as a director, according to section 69(3) of the Companies Act 71 of 2008. “Knowingly” includes the situation where the company should reasonably have known that the person is ineligible or disqualified.

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Section 69(7) lists the persons on which there are an absolute prohibition, being juristic persons, minors or any persons disqualified in terms of the Memorandum of Incorporation. Section 69(8) lists the persons that are disqualified on a temporary basis, being someone who has been prohibited by the court or whom the court has declared a delinquent, unrehabilitated insolvents, persons who were removed from an office of trust on the grounds of misconduct involving dishonesty, and persons who were found guilty of a criminal offence and imprisoned without the option of a fine, or were ordered to pay a higher fine for being found guilty of any dishonesty crimes.1

A question that arises here is what the effect would be of appointing a prohibited director. Section 69(4) says that a person immediately ceases to be a director if they are prohibited from being a director, but section 71(3) states that if a shareholder alleges that a person is disqualified then the person must be removed by a board resolution before they cease to be a director. This means that any act done by such a person, despite his disqualification, will be valid and binding on the company unless the third party who was involved in the act was aware that the person they were dealing with was disqualified.2

Section 162(5) (a)-(f) sets out the grounds for an order of delinquency. A court must make an order declaring a person to be a delinquent director if the person:
1. consented to serve as a director, or acted in the capacity of a director or prescribed officer, while ineligible or disqualified to be a director;
2. acted as a director in a manner that contravened an order of probation; 3. grossly abused the position of director while being a director;
4. took personal advantage of information or an opportunity, or intentionally or by gross negligence inflicted harm upon the company or a subsidiary while being a director;
5. acted in a manner that amounted to gross negligence, wilful misconduct or breach of trust while being a director; or as contemplated in section 77(3) (a), (b) or (c);
6. has repeatedly been personally subject to a compliance notice or similar enforcement mechanism;
7. has been convicted of an offence at least twice, or subjected to an administrative fine or similar penalty; or
8. was a director of a company or a managing member of a close corporation, or controlled or participated in the control of a juristic person that was convicted of an offence, or subjected to a fine or similar penalty, within a period of five years.3 & 4

If a person is declared a delinquent in terms of section 162(5) (a) or (b) it is unconditional and for the lifetime of the person. If a person is declared a delinquent in terms of section 162(5) (c)-(f) this is temporary for a minimum of 7 years.5

It is therefore very important, when appointing a director, to make sure that he is qualified in terms of the new Companies Act. One must do proper research about a person accordingly before appointing him as a director of a company because it is possible that if you do not do so, the company in which you are a shareholder may have to bear the consequences of the actions of this disqualified person.

References:
• Companies Act 71 of 2008
• FHI Cassim et al Contemporary Company Law (2012)

 

1Section 69(7) – (8) of the Companies Act 71 of 2008.
2Section 69(4) and 71(3) of the Companies Act 71 of 2008.
3Section 162(5) (a)-(f) of the Companies Act.
4FHI Cassim et al Contemporary Company Law (2012) 435 – 437.
5FHI Cassim et al Contemporary Company Law (2012) 438.

 

At-Last-Article

Since the commencement of the new Companies Act, 71 of 2008 (“the Act”), there have been different interpretations and conflicting rulings in the different divisions of the High Court with regard to the reinstatement of deregistered companies by virtue of section 82(4)1 of the Act and more specifically whether the reinstatement has retrospective effect. The decisions varied from no retrospectivity to partial retrospectivity to complete retrospectivity.

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Non-retrospectivity

If the reinstatement of a company is with non-retrospectivity any actions taken on behalf of the company during the deregistered period will be void and of no effect. The reason for this is that deregistration puts an end to the existence of a company, it brings an end to its corporate personality.2 The interpretation of non- retrospectivity is supported by Bright Bay Property Service (Pty) Ltd v Moravian Church in South Africa 2013 (3) SA 78 (WCC).

Partial retrospectivity

In Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC) the court’s interpretation of The Act, regarding the reinstatement of a company, is one of partial retrospectivity by which former assets are revested in the company’s name, but it does not validate corporate activity conducted on behalf of the company during the period of deregistration.3 The court’s reasoning for this is the fact that should the reinstatement of a company be with complete retrospectivity it can cause severe prejudice to third parties.

Complete Retrospectivity

Complete Retrospectivity means that with reinstatement of a company, the company will not only be revested with its property, but all corporate activities during the period of its deregistration will also be validated. Two previous High Court cases 4 appear to support this concept, but the issue of retrospectivity was not entirely considered in either one of them and can therefore not be seen as authority on this point.

Ruling by the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) 5 has recently ruled on the interpretation of section 82(4) of the Act on an appeal from the Western Cape High Court, Cape Town.6 The SCA considered if there is any basis for the interpretation by the High in the Peninsula case that reinstatement of a company serves to revest it with its property, but does not validate its corporate activity.

The SCA did not agree with the latter view, and was of the following opinion: ‘revesting of the company with its property can have the same detrimental effect on third parties who have in the meantime acquired rights to that property…and that refusal to validate the corporate activities of a company during its period of demise can be equally devastating to the interests of bona fide third parties who were unaware of the deregistration… The truth is that deregistration of a company bears that inherent risk’.7 The SCA further stated that potential prejudice to third parties therefore cannot render the interpretation of section 82(4) as to exclude retrospective validation.

An application to reinstate the registration of a company under section 82(4) must be advertised in a local newspaper, giving 21 days’ notice of the proposed application for reinstatement.8 Therefore third parties who might be prejudiced by the proposed reinstatement have the opportunity to prevent the reinstatement.

The SCA is further of the meaning that the wording of section 82(4) can in no way suggest partial retrospectivity and that section 82(4) has automatic retrospective effect not only in revesting the company with its property but also in validating its corporate activities during the period of its deregistration.9

The SCA further emphasized that section 83(4)(a)10 of the Act is available to prejudiced third parties and any ‘person with an interest in the company’ to apply for relief connected with the dissolution of the company, even after the company has already been administratively reinstated in terms of section 82(4).11 Thus, in the view of the SCA : ‘the legislature had intended to alleviate the prejudicial effect on third parties or even the company which may be brought about by the retrospective effect of reinstatement under section 82(4)’ of the Act.12

Reinstatement of deregistered companies in South Africa must thus be interpreted as reinstatement with complete retrospective effect, by which former assets are revested in the company`s name and full validation of its corporate activities conducted on behalf of the company during its period of deregistration.

 

1 Sec 82(4) of The Act: If the Commission deregisters a company as contemplated in subsection (3), any interested person may apply in the prescribed manner and form to the Commission, to reinstate the registration of the company.
2 Miller & other v Nafcoc Investment Holding Co Ltd & Others 2010 (6) SA 390 (ZASCA).
3 Also supported by Missouri Trading CC & another v ABSA Bank Ltd & others 2014 (4) SA 55 (KZD).
4 Amarel Africa Distributors (Pty) Ltd v Padayache (236/2011) [2013] ZAGPPHC 87; Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd & others [2014] 3 All SA 664, (218/13) [2014 ZASCA 63.
5 Newlands Surgical Clinic v Peninsula Eye Clinic (086/2014) [2015] ZASCA 25.
6 Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC).
7 See note 8 at para 26.
8 Regulation 40(7) of the Companies Regulations, GN R351 of 2011, GG34239, 26 April 2011, promulgated under the Act; Practice note issued by the CIPC GenN 204, GG 36225, 15 March 2013.
9 See note 8 at 25 para 29.
10 Sec 83(4): At any time after a company has been dissolved – (a) the liquidator of the company, or other person with an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or any other order that is just and equitable in the circumstances.
11 See note 8 at para 30.
12 Supra 11.

 

What-constitutes-fair-d-ismissal

Labour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he does renew the contract, but on less favourable terms than the employee had reasonably expected.

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Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

 

This newsletter 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.

 

Header-Banner-(SITE) dfsg

This month’s issue is all about the youth.

From the protection of children’s rights and supporting children in need, to inspiring young children by exposing them to different career options available to them.

In the spirit of this youth edition we call upon you to support our Annual Function for the Benefit of Charity; this year on behalf of SOS Children’s Villages. Read more about the event and how you can make a difference in a child’s life.

Visit our Facebook Page to see how JJR Inc. supported Cell C’s Take a Girl Child to Work initiative!

Children-Road-Safety-(Heading-2)

It is quite common that South Africa has a very high mortality rate when it comes to road accidents, trauma and more specifically the death of children as passengers in motor vehicle accidents.

The National Road Traffic Act has been silent with regards to infants under the age of 3 and whether or not it is compulsory for them to wear a seatbelt. The Transport Department however has decided to give clarity on the matter and has published amendments to the National Road Traffic Regulations 2000 under the National Road Traffic Act, 1996.

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According to the amendments, each parent will have to take the necessary steps and measurements to ensure the child’s safety. Each child under the age of 3 will be required to be seated in a protective child seat and to wear a seatbelt. The Department states that due to the financial implications that this new regulation might have, it is expected to be of effect 6 months from the date of publication of the regulation.

The proposed penalty for parents and or adults transporting children without a protective child seat and or a safety belt will be determined by the chief magistrates of the different districts and their recommendations will be considered upon the making of the penalty. Parents is therefore advised to comply with the safety regulations from the start to ensure their child’s safety and to avoid prosecution.

 

Accessing-the-damages-(Heading-2)

In the unanimous Constitutional Court judgment by Tshiqi AJ, Coughlan N.O v Road Accident Fund 2015 ZACC 9, the court had to determine whether foster care grants should be deducted from the compensation payable by the Road Accident Fund to foster children.

The children in this case, as represented by the curator ad litem Coughlan, were orphaned after they lost their mother when she was killed in a motor vehicle accident in June 2002. After their mother’s death the children’s maternal grandparents applied and were appointed by the Children’s Court as foster parents. The foster parents in terms of the Social Assistance Act received foster child grants for the three children. As a result of the accident a claim was lodged on behalf of the children for loss of support. The RAF admitted liability, however, it contended that the foster care grants received should be deducted from the compensation payable as failure to do so would amount to double compensation.

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The curator ad litem, Coughlan, brought the application on behalf of three foster children contending that the grants cannot be deducted by the RAF as it amounted to res inter alios acta. In the High Court case (Western Cape division) the court concluded that the foster child grants were in fact res inter alios acta and ordered the RAF to pay the proven damages. The RAF was granted leave to appeal to the Supreme Court of Appeal which subsequently upheld the appeal. The Supreme Court of Appeal concluded that the foster child grants need to be taken into account in assessing the damages to be awarded for their loss of support as it would amount to double compensation.

As this issue deals with a vulnerable group in our society the Constitutional Court was approached to decide whether the grants can be deducted. The Court (on the request of the amicus curiae the Centre for Child law) broadened the enquiry and looked at not only the foster child grants but also the child support grants and whether they are deductible from the damages awarded for loss of support.

In order to determine whether the grants (whether it is child support grants or foster care grants) is deductible, the court investigated various aspects. Firstly, the Court looked at the States duty with regard to caring for children in need and the obligation and purpose of the RAF. The State has constitutional obligations in terms of sections 27 and 28 to take care of children in need within its available resources. In terms 156(1)(e) of the Children’s Act 38 of 2005 the State can fulfil its obligation by way of foster care or youth centres with regard to the care of children who either have no parent/care-giver or the person is unable or unsuitable to take care of the children. Foster care specifically is more than mere money, and as the Court states it “encompasses parenting, love, care, nurturing, discipline and other benefits of raising a child in a family environment” Comparing this to RAF’s compensation which is simply the damages awarded for loss related to material needs. The Court concluded that is clear that the “non-monetary dimension of fostering reveals the inappositeness of comparing a grant designed to encourage fostering with compensation for the loss of a parental breadwinner.”

Secondly the Court looked at the causal link between the death and foster care as well as the fact that the grants are paid to the parent directly and not the child. It is clear that foster care is not predicated on the death of the parent but based on the child being in need of care. Furthermore, the grants as opposed to the compensation payable by the RAF, is paid to the foster parents who utilises the money for the welfare of the children.

In conclusion, taking the above mentioned factor into consideration, the Constitutional Court brought clarity to the situation and ruled that the child support grants and foster care grants should not be taken into account when an award of damages for loss of support is made.

 

1 Common law doctrine which holds that a contract cannot adversely affect the rights of one who is not party to the contract.

 

Child-Labour-(Heading-2)

These days so many children drop out of schools to join the working class rather than to receive a good education and to pursue a professional career. It is tempting for employers to employ these desperate young people for a lower fee than the educated individual. The BCEAA (Basic Conditions of Employment Amendment Act) indicates that it is a criminal offence to employ a child under the age of 15 (fifteen) years old except if you as the employer have a permit issued by the Department of Labour to employ a child specifically in the area of performing arts. The BCEAA further indicate that children between the ages of 15 (fifteen) and 18 (eighteen) years old may not be employed to do inappropriate work for their age or work that places them at risk. The inappropriate aspect regarding child labour mentioned above is when the tasks given are exploitative or hazardous of nature for the child’s age or detrimental to the child’s spiritual, mental, physical or moral development. Even if the child’s employment is of a desperate nature to provide financial security for his parents, it is not a ground that the employer can rely on to justify the employment of this child. The last mentioned example remains child labour and the employer can face a hefty fine or imprisonment of up to 3 (three) years.

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The employer should consider the following aspects if he intends to employ a child between the ages of of 15 (fifteen) and 18 (eighteen) years old:

  • • There should be a written contract of employment between the employer and the child’s parent or his/her legal guardian.
  • • Remuneration should be paid to the child’s parent or his/her legal guardian.
  • • The child may not be instructed to work at night (between the hours of 22h00 and 05h00) without written permission by the child’s parent or his/her legal guardian.

These are just a few aspects that the employer should bear in mind when legal child labour is required. The Department of Labour along with the Department of Education would rather see children get a well rounded education and join the working class at a more suitable age. This last mentioned vision would hopefully lead to the growth of the educated working class and less exploitation of child labour.

 

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This newsletter 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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The Constitutional Court on 11 September 2014 delivered judgment in the Turnbull-Jackson case involving an 11-year long legal dispute regarding the approval of building plans by the Hibiscus Coast Municipality. The case reached the Court as an appeal against an order of the KwaZulu Natal High Court. Pearl Star Investments 14 CC obtained approval from the Hibiscus Coast Municipality to build a three-storey block of flats. On previous occasions, Mr Turnbull-Jackson succeeded to have the approval set aside, but in 2006 he failed to set aside the most recent building plans.

He instituted a review application in the High Court, but failed once again. On appeal to the Constitutional Court he based the review of the approval on various grounds including, amongst others, bias of the building control official as well as the fact that the necessary level of compliance with section 7(1)(b)(ii) of the Building Standards Act was not met.

Section 7(1)(b)(ii) specifically deals with refusal of the approving building plans if certain disqualifying factors, such as the fact that a building can be unsightly or will derogate from the value of the adjoining or neighbouring properties, is present.

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Madlanga J (with whom Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Majiedt AJ and Zondo J concurred), dismissed each of the grounds on which Mr Turnbull-Jackson relied. The central dispute, however, addressed the two different interpretations of section 7(1)(b)(ii) of the Building Standards Act. Mr Turnbull-Jackson in his grounds for review, relied on the interpretation given to section 7(1)(b)(ii) in the Constitutional Court case of Walele v City of Cape Town and Others 2008 (6) SA 129 (CC). The municipality in turn relied on the Supreme Court of Appeal (SCA) case True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) where the SCA expressly did not follow the Walele case. The True Motives interpretation states that the local authority must only refuse to grant approval of building plans if satisfied that the disqualifying factors will in fact or probably eventuate. This differs from the Walele case’s approach requiring the local authority to approve plans only if it is satisfied that the disqualifying factors will not eventuate before granting approval. At the core of the Walele-True Motives dispute is the principal of judicial precedent, a core component of South African law. This principle entails that courts must follow and are bound to decisions of higher courts. Only the ratio decidendi, or the reason for the judgment, needs to be followed and not any remarks that have been made in passing. The question is raised whether the SCA in True Motives erred by not following the judgment of Walele. The Constitutional Court had to determine whether the interpretation of section 7(1)(b)(ii) in Walele was made in passing, and if not, whether the interpretation was incorrect. Only in those two instances the SCA could depart from the Walele decision. Madlanga J held that the interpretation of section 7(1)(b)(ii) in Walele formed part of the rationale behind the decision. The decision itself in Walele took into consideration the possibility of harm to the owner and occupants of the property to be developed, and the fact that a development may have adverse effects on the rights of owners of neighbouring properties. It is for this reason that in Walele the court interpreted section 7(1)(b)(ii) to mean that local authority can only approve plans if it is satisfied that the disqualifying factors will not eventuate. As a result Madlanga J upheld the decision as being correct and stated that in the particular set of facts of Turnbull-Jackson there was no improper exercise of section 7(1)(b)(ii). The reasons advanced by the SCA for its departure from Walele did not justify the course adopted. The SCA erred in not following the Walele decision. Madlanga J made it clear that all courts, including the SCA, are bound to follow decisions of the Constitutional Court and only in specific instances are lower courts allowed to depart from judgments. The importance of precedents was emphasised when the Constitutional Court quoted Judge Cameron who stated, “Without precedent there would be no certainty, no predictability and no coherence.”

 

labour-section copySince the Labour Relations Act 66 of 1995 (“LRA”) first came into action, the essence of the fixed term contract of employment and its existence have been questioned by both the CCMA and the Labour Court. Many Employers employed employees on a fixed term basis due to the fact that it seemed like the “easier way out” and that it supposedly meant that Employers had the power to somehow boycott the workings of the LRA, Schedule 8 of the LRA as well as the Basic Conditions of Employment Act 75 of 1997.

Employers also used these supposed fixed term contracts to their advantage by continuously renewing the contracts upon its termination, sometimes on a month-to-month basis, only to inform employees on the last day of a month that their services are not required anymore and that they should have been aware of the fact that this termination could have happened on any given time due to the nature of their employment contracts. The Labour Relations Amendment Act (“LRAA”) however, tells a different story.

The Labour Relations Amendment Act was assented by President Jacob Zuma on the 14th of August 2014 and so it proposed that the Act will be in full force before the end of 2014. The LRAA, in Section 198B, defines a fixed term contract as a contract of employment that terminates on the “occurrence of a specified event, on the completing of a specified task or project, or on a fixed date other than an employee’s normal or agreed retirement age”.

The LRAA specifically states that in the event that a fixed term contract is entered into between an employer and an employee, a justifiable reason has to be given for the nature of the contract. The LRAA refers to the following reasons as being justifiable:

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1. Replacement of another employee who is temporarily absent from work 2. A temporary increase in workload (not exceeding 12 months) 3. Student / recent graduate employed for training purposes or to gain work experience; 4. Project specific work with a limited duration; 5. Non-citizens with working permits for a specified period; 6. Seasonal work 7. Official public works and or public job creation schemes; 8. Positions funded by an external source for limited periods; 9. After the normal / agreed retirement age has been reached; 10. Any other justifiable reason. These justifiable reasons however, are not the only factor that needs to be considered when regard is being given to the new legislation for fixed term contracts. The offer, renewal and or extended offer for fixed term contracts must be in writing and must contain specific reference to the reasons as to why this is a fixed term contract, the essence of which has to be justifiable. Inference is also drawn to Section 198B(8)(a) of the LRAA wherein it is stated that an employee who is employed in terms of a fixed term contract for a period longer than three months, must not be treated “less favourably” than an employee employed on the same and or similar terms and more specifically on a permanent basis, unless there is once again a “justifiable reason” for the different treatment. A grace period of three (3) months after the commencement of the Labour Relations Amendment Act 2014 will be granted to all Employers to remedy their existing fixed term contracts of employments with employees that are not in accordance with the subsection referred to. It is also noted that an employee employed on a fixed term basis for a period exceeding 24 months, upon expiry of the contract, has to be paid one week’s remuneration for each completed year of the contract calculated in accordance with Section 35 of the Basic Conditions of Employment Act 75 of 1997. Based on the new amendments it is therefore made abundantly clear that fixed term contracts need to be entered into mindfully by Employers, as it appears as if they are here to stay and will not easily be hoodwinked.
 
sub-heading03.3 copyMost sale agreements contain the ever popular ‘suspensive condition’ and too many sellers and buyers are left wondering what these clauses actually mean. A suspensive condition is inserted into a sale agreement to the benefit of a buyer. This condition affords the buyer the opportunity to obtain bond approval within the time frame mentioned in the suspensive condition. Should the buyer be unsuccessful in obtaining bond approval, the sale agreement will lapse and become null and void. The buyer can therefore not be held liable to the seller for breach of contract if he could not comply with the suspensive condition timeously. However, if the buyer did comply fully with the suspensive condition and then decides to withdraw from the agreement, he can beheld liable for damages suffered by the seller.
Both the seller and buyer should therefore take care as to the proper wording contained in the suspensive condition. The clause should make mention of the loan amount the buyer wishes to apply for, as well as the date on which such bond approval should be in place. If the buyer intends to utilise funds from the sale of his current property for the purchase of the new property, he may insert the successful sale and registration of his current property as a suspensive condition into the terms of the new sale agreement by which new property is purchased. It is further important to note that should the buyer not comply timeously and the agreement has lapsed, but both parties still wish to proceed with the transaction, the parties must then enter into a new agreement for the purchase of the property.
 
sub-heading03
The National Credit Act 34 of 2005 (“NCA”) determines that any credit provider that wants to enforce a credit agreement must, under section 129, deliver a notice to a consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights in terms of the NCA. In the case of Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1 the parties entered into an instalment sale agreement for the purchase of a motor vehicle. After Mr Kubyane fell into arrears Standard Bank informed him of the default by sending a notice in terms of section 129 by registered post.
The letter was specifically sent to the postal address that Mr Kubyana indicated in the agreement
Mr Kubyana, however, failed to collect his registered post. Five weeks later the notice was returned to Standard Bank uncollected and Standard Bank continued to institute summons against Mr Kubyana. Mr Kubyana raised a special plea stating that Standard Bank had not discharged all its obligations in terms of section 129 of the NCA, as he was only made aware of the default after receiving the summons.
Mr Kubyana specifically relied on the case of Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142(CC) where, similarly, a section 129 notice was sent by registered post but was returned to the credit provider unclaimed.
Mr Kubyana based his argument on the fact that if the post is unclaimed the creditor provider has failed to fulfil their obligations in terms of the NCA. The Constitutional Court in Mr Kubyana’s case had to determine what constitutes proper delivery if a consumer elected to receive notices by way of post. In general, in order to effect delivery, the credit provider must take those steps that would bring the notice

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The Sebola case can be distinguished from the facts of Mr Kubyana’s as Sebola was successful in challenging the delivery of the notice because it was sent to the wrong post office. The notice in the Sebola case would
never have reached Mr Sebola. Mr Kubyana on the other hand merely refrained from collecting his registered post. The Constitutional Court held that when a consumer has elected to receive notices by way of post, a credit provider must prove
1.the notice was sent by way of registered mail;
2.that the notice reached the correct branch of the Post Office; and
3.that the notification from the Post Office requesting that the consumer collect the section 129 notice was sent to the chosen address.
If a creditor provider ensures that the above steps have been taken, the credit provider would have fulfilled its obligations to bring the notice to the intention of the reasonable consumer. It will then be for the consumer to provide reasonable explanations as to why the notice still did not reach the consumer.
Mr Kubyana was unable to provide a suitable explanation for his failure to collect his registered post, there was therefore no evidence before the Court showing why it was reasonable for Mr Kubyana not to have taken receipt of the section 129 notice. Standard Bank was under no obligation to employ additional means to ensure that Mr Kubyana received his notice.
The Constitutional Court determined that it is sufficient if the notice is reduced to writing and made available to the consumer at his or her nominated address. If the nominated address is a postal address the delivery must be by registered post to the correct post office. If the consumer then fails to respond to the notice, the credit provider is allowed to proceed with legal steps against the consumer.

 

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This newsletter 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.

 

Header Banner dfsg I am every woman

Most people postpone the drafting of a will. It is understandable, because most people do not like to think about death. But death is inevitable, and when it comes will your loved ones be taken care of?

Don’t postpone. Select the recipients of your estate today or the laws of intestate succession will select it for you...

In this Newsletter we will be looking at the importance of a will as well as the requirements and formalities of a valid will.

Enjoy the read and contact us when you are ready to take the next step!

"Death is inevitable. Life is inevitable too. However, the timing is somewhat flexible."
- Amelia Mysko

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One of life’s utmost certainties is death. It is never too early to start thinking of a will to protect your current and future loved ones. A will ensures that one does not place a burden on the ones left behind. It further ensures that all of your assets will be distributed amongst your heirs according to your wishes, and gives you the opportunity to nominate a reliable person as your executor that will make sure that your loved ones are taken care of after your death.

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The following issues should be borne in mind when drafting a will:

  • • Who the executor should be;
  • • Creating of a trust to support your spouse and children;
  • • How your liabilities will be covered;
  • • Guardianship for the minor children (if applicable);
  • • How to approach tax (and not to avoid it);
  • • Who your beneficiaries should be;
  • • To indicate whether you are an organ donor or not;
  • • Specific provisions for important medical decisions (i.e. under which circumstances life support should be terminated).

It should be noted that once a will has been drafted it should be revisited on a regular basis due to the possible change of beneficiaries, in the event of divorce or death, a change in your financial position, or in the case of nominating another executor.

A will should not be seen as the deceased ruling from the grave, but rather as a way for the deceased to ensure that loved ones are taken care of in the future; that a reliable person as executor will fulfill the wishes of the deceased; that any debts are taken care of rather than it lurking like dark shadows over the ones left behind. It also makes the administration process of the estate a lot easier for the executor and it prevents the estate from falling under the laws of intestate succession.

So make an appointment today to see one of our legal experts to ensure that all the factors mentioned herein are covered, that your loved ones are taken care of and that your wishes be fulfilled…sooner rather than later.

 

Do-I-have-a-valid-will

It is very important to know that your will has to comply with a few formal basic requirements in order for it to be valid 1. If the will is found to be invalid, the Intestate Succession Act 2 will come into operation and the assets are distributed in a definite order of preference among the heirs. In order to ensure that your belongings are distributed to the ones your love; make sure that your will meets the following formal requirements:

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1. The will must be signed at the end thereof by the testator;

2. The signature must be made by the testator himself;

3. The testator must make his signature in the presence of at least two competent (older than fourteen years) witnesses;

4. The testator and witnesses must all be present at the same time when signing;

5. The witnesses must also sign the will in the presence of the testator;

6. If the will consists of more than one page, each page other than the page on which it ends, must be signed by the testator and witnesses;

7. If a testator signs by using a mark as a signature, a magistrate, justice of the peace, commissioner of oaths or notary public certifies at the end thereof that he has satisfied himself as to the identity of the testator and that the will, so signed, is the will of the testator, and if the will consists of more than one page, each page other than the page on which it ends, is also signed, anywhere on the page, by the magistrate, justice of the peace, commissioner of oaths or notary public who so certifies;

8. If any deletion, addition, alteration or interlineation is made, the following is required:

a. The Testator must identify and sign next to any deletion, addition, alteration or interlineation;

b. Such signature must be made by the testator in the presence of two competent witnesses who are all present at the same time;

c. The witnesses must identify and sign next to any deletion, addition, alteration or interlineation, in the presence of the testator and each other and at the same time;

d. If the deletion, addition, alteration or interlineation is identified by the mark of the testator or the signature of some other person made in his presence and by his direction, a magistrate, justice of the peace, commissioner of oaths or notary public certifies on the will that he has satisfied himself as to the identity of the testator and that the deletion, addition, alteration or interlineation has been made by or at the request of the testator.

 

1Wills Act 7 of 1953, section 2
2Act 81 of 1987

 

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This newsletter 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.

 

Header Banner dfsg I am every woman
I am the hands that nurture the earth
I am the reason children understand their worth
I am courageous, I am compassionate and brave
I am everything, but I am no one’s slave
I have fought battles, sometimes without using my hands
and where forgiveness fails, my grace softly lands
I am black, I am white, I am grey
For sinners and saints alike, I pray
I sow, I stitch, I mend
I sometimes wear makeup and I sometimes pretend
I am strong, I am weak, I am me
I have fought hard to be free

and to deserve my rightful place in society.

This month’s newsletter is a tribute to all the wonderful women of South Africa.

We salute you.

JJR INC. Team

You-strike-a-woman,-you-strike-a-rock!-(Melcom-Oosthuizen) While researching various topics relating to Women’s month I stumbled upon the title, a struggle song, with specific relevance to Women’s day and as a result core to our country’s history. It was on the 9th of August 1956 when over
20 000 women of all races marched in protest to the “pass laws”. The phrase resonates deep emotional connotations regarding the backbone of our society, our women. Sadly, the words bear so much more truth when you consider that South Africa has one of the highest incidences of abuse against women in the world. Even though the month of August is known as Women’s month, this article remains relevant to all persons suffering from or involved in any form of abuse.

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WHAT IS DOMESTIC VIOLENCE?

Often we incorrectly interpret the phrase ‘domestic violence’ to consist of only physical abuse, but this is not entirely true. In terms of the Domestic Violence Act 116 of 1998 domestic violence has been given a broad definition and incorporates all of the below mentioned acts:

  • • Physical abuse;
  • • Sexual abuse;
  • • Emotional, verbal and psychological abuse;
  • • Economic abuse;
  • • Intimidation;
  • • Harassment;
  • • Stalking;
  • • Damage to property;
  • • Entry into the complainant’s residence without consent, where the parties do not share the same residence; or
  • • Any other controlling or abusive behaviour towards the Complainant.

WHO CAN APPLY?

It must further be pointed out that the protection afforded above is not just applicable to married couples, but to their children, unmarried couples, parents, siblings and all other persons sharing a living space. The only requirement is that the respective parties must share a living space. The act makes provision for one exception, namely entry into the complainant’s residence without consent, where the parties don’t share the same residence.

WHAT KIND OF PROTECTION CAN BE CLAIMED?

The Complainant can ask for various remedies. The remedies are completely set out in Form 2, which is discussed hereunder. Examples of the remedies include:

  • • Not to commit an act of Domestic Violence or get the help of another person to commit same;
  • • Not to enter the shared residence, or specific part of the shared residence;
  • • Not to enter the Complainant place of employment;
  • • Not to prevent the Complainant, or any other person who ordinarily lives in the residence from entering or remaining in the shared residence;
  • • Seizure of the Respondent’s weapons;
  • • Collection of the Complainant’s property from the shared residence;
  • • Payment of emergency monetary relief;
  • • Refusal of contact with the minor children;
  • • The physical address of the Complainants residence not to be disclosed to the Respondent.

HOW DO I APPLY FOR A PROTECTION ORDER AND ENSURE MY PROTECTION?

The procedure for obtaining a protection order is a rather simple procedure designed to assist members of the public. All relevant forms can be found on http://www.justice.gov.za/forms/form_dva.htm, and can be completed with relevant ease. In order to initiate the proceedings, the Complainant (the person applying for protection) must complete Form 2 and submit same to your nearest Magistrates Court in the area where you live or work.

THE PROTECTION FROM HARASSMENT ACT, ACT 17 OF 2011

Another problem that many people face is the act of harassment. The Act defines ‘harassment’ as either direct or indirect conduct that either causes harm or inspires the Complainant to reasonably believe that harm may be caused. The conduct includes the following:

  • • Watching, pursuing or accosting of the Complainant or someone in a close relationship with the Complainant such as a spouse or family member;
  • • Loitering outside or near the building or place where the Complainant or related person lives, works, studies or happens to be.
  • • Verbal communication aimed at the Complainant;
  • • Sending, delivering or causing the delivery of letters, packages and e-mails; and
  • • Sexual harassment which is further defined as “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome.

The procedure to follow in cases of harassment is extremely similar to the procedure of Domestic Violence. The relevant forms can be found on http://www.justice.gov.za/forms/form_pha.html.

CONCLUSION

Both the Domestic Violence Act and the Protection from Harassment Act have made huge strides with regards to advancements in Women’s rights in South Africa. Despite this fact, there are still many people who are unaware of these Acts, the specially designed Courts and the protection afforded in both the Acts. It is important that this knowledge be shared and that we as the citizens of this country make a stand as no form of abuse should be tolerated no matter the persons gender, race, religion or position in society. Women remain pivotal in our society and key to the success of our nation in future and remember Wathint' Abafazi Wathint' imbokodo!

 

Cohabitation-Relationships-(Chazanne-Grobler)

Marriage is an institution of great legal significance, yet cohabitation relationships (also referred to as domestic partnerships) are becoming more prominent in our society. Many women find themselves in the precarious positions of partners not wanting to tie the knot or only hearing the promises of wedding bells. For other women entering into a cohabitation relationship is simply a personal choice. Whatever the reason may be for the domestic partnership, cases such as Volks N.O. v Robinson demonstrate that many women are left destitute after the cohabitation relationships end. This begs the question: Does cohabitation relationships leave women vulnerable?

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Many domestic partners are under the misconception that living together as “husband” and “wife” for an extended period of time results in a common law marriage with all the associated rights including spousal maintenance and proprietary interests. In South Africa common-law marriages are not recognised and no legal protection is afforded to domestic partnerships. The attitude towards cohabitation relationships or domestic partnerships is aptly described in the dissenting judgment of Sachs in Volks NO v Robinson and others where he states that,

“Yet there can be no doubt that many prejudices of the past linger on, particularly against women who are seen as not conducting their lives in a manner befitting their culture or religion. A certain degree of conventional disdain coupled with moral disapproval is still directed at unmarried couples. By the very nature of their unconventional relationship they are regarded as either immoral, irresponsible or defiant. This will be irrespective of the actual degree of commitment, seriousness and stability of their family relationships.”

Cohabitation relationships take on the characteristics of a marriage and women often become the caregiver of the household leaving them economically dependent on their partners. After the relationship ends, these women suffer serious hardships and unlike married women are left without any the legal protection. The end of a cohabitation relationship does not always end in hardship but can place partners, especially women in a vulnerable position. Despite no legal protection being afforded to domestic partnerships per se private law remedies can be utilised to attach consequences to a relationship. The private law remedies include, inter alia, a universal partnership, concluding a domestic partnership agreement, or the creation of a trust. These remedies do not address all of the complexities involved with the ending of relationship as compared to the remedies available to married couples. Until the draft Domestic Partnership Bill of 2008 is enacted serious consideration should however be given to entering into a written agreement or creating a trust to protect your interest.

 

1 Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC).

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This newsletter 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.

 

Banner-Top-(July-2015) dfsg

Are you starting up your own business?

In this issue we are going to touch on some important aspects to be aware of when you have a company / starting up your own business. For instance: who may be appointed as directors and who are disqualified to be directors; what to take into consideration and which processes to follow when dismissing an employee; what your options are as company or any person with an interest in a company, when that company has been deregistered or reinstated after deregistration and you are being prejudiced by it.

Make sure you are aware of the possible obstacles of having your own business and know your options and rights!

Who-may-be-appointed-as-director

Certain people are not eligible to be appointed as directors of a company. In this article we look at who is disqualified from being a director as well as the effects of the actions of such persons while still acting as director.

A company must not knowingly permit an ineligible or disqualified person to serve or act as a director, according to section 69(3) of the Companies Act 71 of 2008. “Knowingly” includes the situation where the company should reasonably have known that the person is ineligible or disqualified.

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Section 69(7) lists the persons on which there are an absolute prohibition, being juristic persons, minors or any persons disqualified in terms of the Memorandum of Incorporation. Section 69(8) lists the persons that are disqualified on a temporary basis, being someone who has been prohibited by the court or whom the court has declared a delinquent, unrehabilitated insolvents, persons who were removed from an office of trust on the grounds of misconduct involving dishonesty, and persons who were found guilty of a criminal offence and imprisoned without the option of a fine, or were ordered to pay a higher fine for being found guilty of any dishonesty crimes.1

A question that arises here is what the effect would be of appointing a prohibited director. Section 69(4) says that a person immediately ceases to be a director if they are prohibited from being a director, but section 71(3) states that if a shareholder alleges that a person is disqualified then the person must be removed by a board resolution before they cease to be a director. This means that any act done by such a person, despite his disqualification, will be valid and binding on the company unless the third party who was involved in the act was aware that the person they were dealing with was disqualified.2

Section 162(5) (a)-(f) sets out the grounds for an order of delinquency. A court must make an order declaring a person to be a delinquent director if the person:
1. consented to serve as a director, or acted in the capacity of a director or prescribed officer, while ineligible or disqualified to be a director;
2. acted as a director in a manner that contravened an order of probation; 3. grossly abused the position of director while being a director;
4. took personal advantage of information or an opportunity, or intentionally or by gross negligence inflicted harm upon the company or a subsidiary while being a director;
5. acted in a manner that amounted to gross negligence, wilful misconduct or breach of trust while being a director; or as contemplated in section 77(3) (a), (b) or (c);
6. has repeatedly been personally subject to a compliance notice or similar enforcement mechanism;
7. has been convicted of an offence at least twice, or subjected to an administrative fine or similar penalty; or
8. was a director of a company or a managing member of a close corporation, or controlled or participated in the control of a juristic person that was convicted of an offence, or subjected to a fine or similar penalty, within a period of five years.3 & 4

If a person is declared a delinquent in terms of section 162(5) (a) or (b) it is unconditional and for the lifetime of the person. If a person is declared a delinquent in terms of section 162(5) (c)-(f) this is temporary for a minimum of 7 years.5

It is therefore very important, when appointing a director, to make sure that he is qualified in terms of the new Companies Act. One must do proper research about a person accordingly before appointing him as a director of a company because it is possible that if you do not do so, the company in which you are a shareholder may have to bear the consequences of the actions of this disqualified person.

References:
• Companies Act 71 of 2008
• FHI Cassim et al Contemporary Company Law (2012)

 

1Section 69(7) – (8) of the Companies Act 71 of 2008.
2Section 69(4) and 71(3) of the Companies Act 71 of 2008.
3Section 162(5) (a)-(f) of the Companies Act.
4FHI Cassim et al Contemporary Company Law (2012) 435 – 437.
5FHI Cassim et al Contemporary Company Law (2012) 438.

 

At-Last-Article

Since the commencement of the new Companies Act, 71 of 2008 (“the Act”), there have been different interpretations and conflicting rulings in the different divisions of the High Court with regard to the reinstatement of deregistered companies by virtue of section 82(4)1 of the Act and more specifically whether the reinstatement has retrospective effect. The decisions varied from no retrospectivity to partial retrospectivity to complete retrospectivity.

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Non-retrospectivity

If the reinstatement of a company is with non-retrospectivity any actions taken on behalf of the company during the deregistered period will be void and of no effect. The reason for this is that deregistration puts an end to the existence of a company, it brings an end to its corporate personality.2 The interpretation of non- retrospectivity is supported by Bright Bay Property Service (Pty) Ltd v Moravian Church in South Africa 2013 (3) SA 78 (WCC).

Partial retrospectivity

In Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC) the court’s interpretation of The Act, regarding the reinstatement of a company, is one of partial retrospectivity by which former assets are revested in the company’s name, but it does not validate corporate activity conducted on behalf of the company during the period of deregistration.3 The court’s reasoning for this is the fact that should the reinstatement of a company be with complete retrospectivity it can cause severe prejudice to third parties.

Complete Retrospectivity

Complete Retrospectivity means that with reinstatement of a company, the company will not only be revested with its property, but all corporate activities during the period of its deregistration will also be validated. Two previous High Court cases 4 appear to support this concept, but the issue of retrospectivity was not entirely considered in either one of them and can therefore not be seen as authority on this point.

Ruling by the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) 5 has recently ruled on the interpretation of section 82(4) of the Act on an appeal from the Western Cape High Court, Cape Town.6 The SCA considered if there is any basis for the interpretation by the High in the Peninsula case that reinstatement of a company serves to revest it with its property, but does not validate its corporate activity.

The SCA did not agree with the latter view, and was of the following opinion: ‘revesting of the company with its property can have the same detrimental effect on third parties who have in the meantime acquired rights to that property…and that refusal to validate the corporate activities of a company during its period of demise can be equally devastating to the interests of bona fide third parties who were unaware of the deregistration… The truth is that deregistration of a company bears that inherent risk’.7 The SCA further stated that potential prejudice to third parties therefore cannot render the interpretation of section 82(4) as to exclude retrospective validation.

An application to reinstate the registration of a company under section 82(4) must be advertised in a local newspaper, giving 21 days’ notice of the proposed application for reinstatement.8 Therefore third parties who might be prejudiced by the proposed reinstatement have the opportunity to prevent the reinstatement.

The SCA is further of the meaning that the wording of section 82(4) can in no way suggest partial retrospectivity and that section 82(4) has automatic retrospective effect not only in revesting the company with its property but also in validating its corporate activities during the period of its deregistration.9

The SCA further emphasized that section 83(4)(a)10 of the Act is available to prejudiced third parties and any ‘person with an interest in the company’ to apply for relief connected with the dissolution of the company, even after the company has already been administratively reinstated in terms of section 82(4).11 Thus, in the view of the SCA : ‘the legislature had intended to alleviate the prejudicial effect on third parties or even the company which may be brought about by the retrospective effect of reinstatement under section 82(4)’ of the Act.12

Reinstatement of deregistered companies in South Africa must thus be interpreted as reinstatement with complete retrospective effect, by which former assets are revested in the company`s name and full validation of its corporate activities conducted on behalf of the company during its period of deregistration.

 

1 Sec 82(4) of The Act: If the Commission deregisters a company as contemplated in subsection (3), any interested person may apply in the prescribed manner and form to the Commission, to reinstate the registration of the company.
2 Miller & other v Nafcoc Investment Holding Co Ltd & Others 2010 (6) SA 390 (ZASCA).
3 Also supported by Missouri Trading CC & another v ABSA Bank Ltd & others 2014 (4) SA 55 (KZD).
4 Amarel Africa Distributors (Pty) Ltd v Padayache (236/2011) [2013] ZAGPPHC 87; Fintech (Pty) Ltd v Awake Solutions (Pty) Ltd & others [2014] 3 All SA 664, (218/13) [2014 ZASCA 63.
5 Newlands Surgical Clinic v Peninsula Eye Clinic (086/2014) [2015] ZASCA 25.
6 Peninsula Eye Clinic (Pty) Ltd v Newlands Surgical Clinic & others 2014 (1) SA 381 (WCC).
7 See note 8 at para 26.
8 Regulation 40(7) of the Companies Regulations, GN R351 of 2011, GG34239, 26 April 2011, promulgated under the Act; Practice note issued by the CIPC GenN 204, GG 36225, 15 March 2013.
9 See note 8 at 25 para 29.
10 Sec 83(4): At any time after a company has been dissolved – (a) the liquidator of the company, or other person with an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or any other order that is just and equitable in the circumstances.
11 See note 8 at para 30.
12 Supra 11.

 

What-constitutes-fair-d-ismissal

Labour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he does renew the contract, but on less favourable terms than the employee had reasonably expected.

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Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his or her business from being ruined financially.

It is very important that the process contained in section 189 of the Labour Relations Act be followed here. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

 

This newsletter 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.

 

Header-Banner-(SITE) dfsg

This month’s issue is all about the youth.

From the protection of children’s rights and supporting children in need, to inspiring young children by exposing them to different career options available to them.

In the spirit of this youth edition we call upon you to support our Annual Function for the Benefit of Charity; this year on behalf of SOS Children’s Villages. Read more about the event and how you can make a difference in a child’s life.

Visit our Facebook Page to see how JJR Inc. supported Cell C’s Take a Girl Child to Work initiative!

Children-Road-Safety-(Heading-2)

It is quite common that South Africa has a very high mortality rate when it comes to road accidents, trauma and more specifically the death of children as passengers in motor vehicle accidents.

The National Road Traffic Act has been silent with regards to infants under the age of 3 and whether or not it is compulsory for them to wear a seatbelt. The Transport Department however has decided to give clarity on the matter and has published amendments to the National Road Traffic Regulations 2000 under the National Road Traffic Act, 1996.

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According to the amendments, each parent will have to take the necessary steps and measurements to ensure the child’s safety. Each child under the age of 3 will be required to be seated in a protective child seat and to wear a seatbelt. The Department states that due to the financial implications that this new regulation might have, it is expected to be of effect 6 months from the date of publication of the regulation.

The proposed penalty for parents and or adults transporting children without a protective child seat and or a safety belt will be determined by the chief magistrates of the different districts and their recommendations will be considered upon the making of the penalty. Parents is therefore advised to comply with the safety regulations from the start to ensure their child’s safety and to avoid prosecution.

 

Accessing-the-damages-(Heading-2)

In the unanimous Constitutional Court judgment by Tshiqi AJ, Coughlan N.O v Road Accident Fund 2015 ZACC 9, the court had to determine whether foster care grants should be deducted from the compensation payable by the Road Accident Fund to foster children.

The children in this case, as represented by the curator ad litem Coughlan, were orphaned after they lost their mother when she was killed in a motor vehicle accident in June 2002. After their mother’s death the children’s maternal grandparents applied and were appointed by the Children’s Court as foster parents. The foster parents in terms of the Social Assistance Act received foster child grants for the three children. As a result of the accident a claim was lodged on behalf of the children for loss of support. The RAF admitted liability, however, it contended that the foster care grants received should be deducted from the compensation payable as failure to do so would amount to double compensation.

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The curator ad litem, Coughlan, brought the application on behalf of three foster children contending that the grants cannot be deducted by the RAF as it amounted to res inter alios acta. In the High Court case (Western Cape division) the court concluded that the foster child grants were in fact res inter alios acta and ordered the RAF to pay the proven damages. The RAF was granted leave to appeal to the Supreme Court of Appeal which subsequently upheld the appeal. The Supreme Court of Appeal concluded that the foster child grants need to be taken into account in assessing the damages to be awarded for their loss of support as it would amount to double compensation.

As this issue deals with a vulnerable group in our society the Constitutional Court was approached to decide whether the grants can be deducted. The Court (on the request of the amicus curiae the Centre for Child law) broadened the enquiry and looked at not only the foster child grants but also the child support grants and whether they are deductible from the damages awarded for loss of support.

In order to determine whether the grants (whether it is child support grants or foster care grants) is deductible, the court investigated various aspects. Firstly, the Court looked at the States duty with regard to caring for children in need and the obligation and purpose of the RAF. The State has constitutional obligations in terms of sections 27 and 28 to take care of children in need within its available resources. In terms 156(1)(e) of the Children’s Act 38 of 2005 the State can fulfil its obligation by way of foster care or youth centres with regard to the care of children who either have no parent/care-giver or the person is unable or unsuitable to take care of the children. Foster care specifically is more than mere money, and as the Court states it “encompasses parenting, love, care, nurturing, discipline and other benefits of raising a child in a family environment” Comparing this to RAF’s compensation which is simply the damages awarded for loss related to material needs. The Court concluded that is clear that the “non-monetary dimension of fostering reveals the inappositeness of comparing a grant designed to encourage fostering with compensation for the loss of a parental breadwinner.”

Secondly the Court looked at the causal link between the death and foster care as well as the fact that the grants are paid to the parent directly and not the child. It is clear that foster care is not predicated on the death of the parent but based on the child being in need of care. Furthermore, the grants as opposed to the compensation payable by the RAF, is paid to the foster parents who utilises the money for the welfare of the children.

In conclusion, taking the above mentioned factor into consideration, the Constitutional Court brought clarity to the situation and ruled that the child support grants and foster care grants should not be taken into account when an award of damages for loss of support is made.

 

1 Common law doctrine which holds that a contract cannot adversely affect the rights of one who is not party to the contract.

 

Child-Labour-(Heading-2)

These days so many children drop out of schools to join the working class rather than to receive a good education and to pursue a professional career. It is tempting for employers to employ these desperate young people for a lower fee than the educated individual. The BCEAA (Basic Conditions of Employment Amendment Act) indicates that it is a criminal offence to employ a child under the age of 15 (fifteen) years old except if you as the employer have a permit issued by the Department of Labour to employ a child specifically in the area of performing arts. The BCEAA further indicate that children between the ages of 15 (fifteen) and 18 (eighteen) years old may not be employed to do inappropriate work for their age or work that places them at risk. The inappropriate aspect regarding child labour mentioned above is when the tasks given are exploitative or hazardous of nature for the child’s age or detrimental to the child’s spiritual, mental, physical or moral development. Even if the child’s employment is of a desperate nature to provide financial security for his parents, it is not a ground that the employer can rely on to justify the employment of this child. The last mentioned example remains child labour and the employer can face a hefty fine or imprisonment of up to 3 (three) years.

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The employer should consider the following aspects if he intends to employ a child between the ages of of 15 (fifteen) and 18 (eighteen) years old:

  • • There should be a written contract of employment between the employer and the child’s parent or his/her legal guardian.
  • • Remuneration should be paid to the child’s parent or his/her legal guardian.
  • • The child may not be instructed to work at night (between the hours of 22h00 and 05h00) without written permission by the child’s parent or his/her legal guardian.

These are just a few aspects that the employer should bear in mind when legal child labour is required. The Department of Labour along with the Department of Education would rather see children get a well rounded education and join the working class at a more suitable age. This last mentioned vision would hopefully lead to the growth of the educated working class and less exploitation of child labour.

 

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This newsletter 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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article header02

The Constitutional Court on 11 September 2014 delivered judgment in the Turnbull-Jackson case involving an 11-year long legal dispute regarding the approval of building plans by the Hibiscus Coast Municipality. The case reached the Court as an appeal against an order of the KwaZulu Natal High Court. Pearl Star Investments 14 CC obtained approval from the Hibiscus Coast Municipality to build a three-storey block of flats. On previous occasions, Mr Turnbull-Jackson succeeded to have the approval set aside, but in 2006 he failed to set aside the most recent building plans.

He instituted a review application in the High Court, but failed once again. On appeal to the Constitutional Court he based the review of the approval on various grounds including, amongst others, bias of the building control official as well as the fact that the necessary level of compliance with section 7(1)(b)(ii) of the Building Standards Act was not met.

Section 7(1)(b)(ii) specifically deals with refusal of the approving building plans if certain disqualifying factors, such as the fact that a building can be unsightly or will derogate from the value of the adjoining or neighbouring properties, is present.

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Madlanga J (with whom Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Majiedt AJ and Zondo J concurred), dismissed each of the grounds on which Mr Turnbull-Jackson relied. The central dispute, however, addressed the two different interpretations of section 7(1)(b)(ii) of the Building Standards Act. Mr Turnbull-Jackson in his grounds for review, relied on the interpretation given to section 7(1)(b)(ii) in the Constitutional Court case of Walele v City of Cape Town and Others 2008 (6) SA 129 (CC). The municipality in turn relied on the Supreme Court of Appeal (SCA) case True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) where the SCA expressly did not follow the Walele case. The True Motives interpretation states that the local authority must only refuse to grant approval of building plans if satisfied that the disqualifying factors will in fact or probably eventuate. This differs from the Walele case’s approach requiring the local authority to approve plans only if it is satisfied that the disqualifying factors will not eventuate before granting approval. At the core of the Walele-True Motives dispute is the principal of judicial precedent, a core component of South African law. This principle entails that courts must follow and are bound to decisions of higher courts. Only the ratio decidendi, or the reason for the judgment, needs to be followed and not any remarks that have been made in passing. The question is raised whether the SCA in True Motives erred by not following the judgment of Walele. The Constitutional Court had to determine whether the interpretation of section 7(1)(b)(ii) in Walele was made in passing, and if not, whether the interpretation was incorrect. Only in those two instances the SCA could depart from the Walele decision. Madlanga J held that the interpretation of section 7(1)(b)(ii) in Walele formed part of the rationale behind the decision. The decision itself in Walele took into consideration the possibility of harm to the owner and occupants of the property to be developed, and the fact that a development may have adverse effects on the rights of owners of neighbouring properties. It is for this reason that in Walele the court interpreted section 7(1)(b)(ii) to mean that local authority can only approve plans if it is satisfied that the disqualifying factors will not eventuate. As a result Madlanga J upheld the decision as being correct and stated that in the particular set of facts of Turnbull-Jackson there was no improper exercise of section 7(1)(b)(ii). The reasons advanced by the SCA for its departure from Walele did not justify the course adopted. The SCA erred in not following the Walele decision. Madlanga J made it clear that all courts, including the SCA, are bound to follow decisions of the Constitutional Court and only in specific instances are lower courts allowed to depart from judgments. The importance of precedents was emphasised when the Constitutional Court quoted Judge Cameron who stated, “Without precedent there would be no certainty, no predictability and no coherence.”

 

labour-section copySince the Labour Relations Act 66 of 1995 (“LRA”) first came into action, the essence of the fixed term contract of employment and its existence have been questioned by both the CCMA and the Labour Court. Many Employers employed employees on a fixed term basis due to the fact that it seemed like the “easier way out” and that it supposedly meant that Employers had the power to somehow boycott the workings of the LRA, Schedule 8 of the LRA as well as the Basic Conditions of Employment Act 75 of 1997.

Employers also used these supposed fixed term contracts to their advantage by continuously renewing the contracts upon its termination, sometimes on a month-to-month basis, only to inform employees on the last day of a month that their services are not required anymore and that they should have been aware of the fact that this termination could have happened on any given time due to the nature of their employment contracts. The Labour Relations Amendment Act (“LRAA”) however, tells a different story.

The Labour Relations Amendment Act was assented by President Jacob Zuma on the 14th of August 2014 and so it proposed that the Act will be in full force before the end of 2014. The LRAA, in Section 198B, defines a fixed term contract as a contract of employment that terminates on the “occurrence of a specified event, on the completing of a specified task or project, or on a fixed date other than an employee’s normal or agreed retirement age”.

The LRAA specifically states that in the event that a fixed term contract is entered into between an employer and an employee, a justifiable reason has to be given for the nature of the contract. The LRAA refers to the following reasons as being justifiable:

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1. Replacement of another employee who is temporarily absent from work 2. A temporary increase in workload (not exceeding 12 months) 3. Student / recent graduate employed for training purposes or to gain work experience; 4. Project specific work with a limited duration; 5. Non-citizens with working permits for a specified period; 6. Seasonal work 7. Official public works and or public job creation schemes; 8. Positions funded by an external source for limited periods; 9. After the normal / agreed retirement age has been reached; 10. Any other justifiable reason. These justifiable reasons however, are not the only factor that needs to be considered when regard is being given to the new legislation for fixed term contracts. The offer, renewal and or extended offer for fixed term contracts must be in writing and must contain specific reference to the reasons as to why this is a fixed term contract, the essence of which has to be justifiable. Inference is also drawn to Section 198B(8)(a) of the LRAA wherein it is stated that an employee who is employed in terms of a fixed term contract for a period longer than three months, must not be treated “less favourably” than an employee employed on the same and or similar terms and more specifically on a permanent basis, unless there is once again a “justifiable reason” for the different treatment. A grace period of three (3) months after the commencement of the Labour Relations Amendment Act 2014 will be granted to all Employers to remedy their existing fixed term contracts of employments with employees that are not in accordance with the subsection referred to. It is also noted that an employee employed on a fixed term basis for a period exceeding 24 months, upon expiry of the contract, has to be paid one week’s remuneration for each completed year of the contract calculated in accordance with Section 35 of the Basic Conditions of Employment Act 75 of 1997. Based on the new amendments it is therefore made abundantly clear that fixed term contracts need to be entered into mindfully by Employers, as it appears as if they are here to stay and will not easily be hoodwinked.
 
sub-heading03.3 copyMost sale agreements contain the ever popular ‘suspensive condition’ and too many sellers and buyers are left wondering what these clauses actually mean. A suspensive condition is inserted into a sale agreement to the benefit of a buyer. This condition affords the buyer the opportunity to obtain bond approval within the time frame mentioned in the suspensive condition. Should the buyer be unsuccessful in obtaining bond approval, the sale agreement will lapse and become null and void. The buyer can therefore not be held liable to the seller for breach of contract if he could not comply with the suspensive condition timeously. However, if the buyer did comply fully with the suspensive condition and then decides to withdraw from the agreement, he can beheld liable for damages suffered by the seller.
Both the seller and buyer should therefore take care as to the proper wording contained in the suspensive condition. The clause should make mention of the loan amount the buyer wishes to apply for, as well as the date on which such bond approval should be in place. If the buyer intends to utilise funds from the sale of his current property for the purchase of the new property, he may insert the successful sale and registration of his current property as a suspensive condition into the terms of the new sale agreement by which new property is purchased. It is further important to note that should the buyer not comply timeously and the agreement has lapsed, but both parties still wish to proceed with the transaction, the parties must then enter into a new agreement for the purchase of the property.
 
sub-heading03
The National Credit Act 34 of 2005 (“NCA”) determines that any credit provider that wants to enforce a credit agreement must, under section 129, deliver a notice to a consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights in terms of the NCA. In the case of Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1 the parties entered into an instalment sale agreement for the purchase of a motor vehicle. After Mr Kubyane fell into arrears Standard Bank informed him of the default by sending a notice in terms of section 129 by registered post.
The letter was specifically sent to the postal address that Mr Kubyana indicated in the agreement
Mr Kubyana, however, failed to collect his registered post. Five weeks later the notice was returned to Standard Bank uncollected and Standard Bank continued to institute summons against Mr Kubyana. Mr Kubyana raised a special plea stating that Standard Bank had not discharged all its obligations in terms of section 129 of the NCA, as he was only made aware of the default after receiving the summons.
Mr Kubyana specifically relied on the case of Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142(CC) where, similarly, a section 129 notice was sent by registered post but was returned to the credit provider unclaimed.
Mr Kubyana based his argument on the fact that if the post is unclaimed the creditor provider has failed to fulfil their obligations in terms of the NCA. The Constitutional Court in Mr Kubyana’s case had to determine what constitutes proper delivery if a consumer elected to receive notices by way of post. In general, in order to effect delivery, the credit provider must take those steps that would bring the notice

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The Sebola case can be distinguished from the facts of Mr Kubyana’s as Sebola was successful in challenging the delivery of the notice because it was sent to the wrong post office. The notice in the Sebola case would
never have reached Mr Sebola. Mr Kubyana on the other hand merely refrained from collecting his registered post. The Constitutional Court held that when a consumer has elected to receive notices by way of post, a credit provider must prove
1.the notice was sent by way of registered mail;
2.that the notice reached the correct branch of the Post Office; and
3.that the notification from the Post Office requesting that the consumer collect the section 129 notice was sent to the chosen address.
If a creditor provider ensures that the above steps have been taken, the credit provider would have fulfilled its obligations to bring the notice to the intention of the reasonable consumer. It will then be for the consumer to provide reasonable explanations as to why the notice still did not reach the consumer.
Mr Kubyana was unable to provide a suitable explanation for his failure to collect his registered post, there was therefore no evidence before the Court showing why it was reasonable for Mr Kubyana not to have taken receipt of the section 129 notice. Standard Bank was under no obligation to employ additional means to ensure that Mr Kubyana received his notice.
The Constitutional Court determined that it is sufficient if the notice is reduced to writing and made available to the consumer at his or her nominated address. If the nominated address is a postal address the delivery must be by registered post to the correct post office. If the consumer then fails to respond to the notice, the credit provider is allowed to proceed with legal steps against the consumer.

 

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Cohabitation-Relationships-(Chazanne-Grobler)

Marriage is an institution of great legal significance, yet cohabitation relationships (also referred to as domestic partnerships) are becoming more prominent in our society. Many women find themselves in the precarious positions of partners not wanting to tie the knot or only hearing the promises of wedding bells. For other women entering into a cohabitation relationship is simply a personal choice. Whatever the reason may be for the domestic partnership, cases such as Volks N.O. v Robinson demonstrate that many women are left destitute after the cohabitation relationships end. This begs the question: Does cohabitation relationships leave women vulnerable?

Many domestic partners are under the misconception that living together as “husband” and “wife” for an extended period of time results in a common law marriage with all the associated rights including spousal maintenance and proprietary interests. In South Africa common-law marriages are not recognised and no legal protection is afforded to domestic partnerships. The attitude towards cohabitation relationships or domestic partnerships is aptly described in the dissenting judgment of Sachs in Volks N.O. v Robinson and others where he states that,

“Yet there can be no doubt that many prejudices of the past linger on, particularly against women who are seen as not conducting their lives in a manner befitting their culture or religion. A certain degree of conventional disdain coupled with moral disapproval is still directed at unmarried couples. By the very nature of their unconventional relationship they are regarded as either immoral, irresponsible or defiant. This will be irrespective of the actual degree of commitment, seriousness and stability of their family relationships.”

Cohabitation relationships take on the characteristics of a marriage and women often become the caregiver of the household leaving them economically dependent on their partners. After the relationship ends, these women suffer serious hardships and unlike married women are left without any the legal protection. The end of a cohabitation relationship does not always end in hardship but can place partners, especially women in a vulnerable position. Despite no legal protection being afforded to domestic partnerships per se private law remedies can be utilised to attach consequences to a relationship. The private law remedies include, inter alia, a universal partnership, concluding a domestic partnership agreement, or the creation of a trust. These remedies do not address all of the complexities involved with the ending of relationship as compared to the remedies available to married couples. Until the draft Domestic Partnership Bill of 2008 is enacted serious consideration should however be given to entering into a written agreement or creating a trust to protect your interest.

 

1 Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC).

 

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.

 

JJR Inc_Newsletter_Oc_print.pdf-1

Turnbull-Jackson v Hibiscus Coast Municipality and Others (CCT 104/13 [2014] ZACC 24) putting an end to the Walele-True Motives disputes on approval of building plans.

The Constitutional Court on 11 September 2014 delivered judgment in the Turnbull-Jackson case involving an 11-year long legal dispute regarding the approval of building plans by the Hibiscus Coast Municipality. The case reached the Court as an appeal against an order of the KwaZulu Natal High Court.
Pearl Star Investments 14 CC obtained approval from the Hibiscus Coast Municipality to build a three-storey block of flats. On previous occasions, Mr Turnbull-Jackson succeeded to have the approval set aside, but in 2006 he failed to set aside the most recent building plans.

read more


He instituted a review application in the High Court, but failed once again. On appeal to the Constitutional Court he based the review of the approval on various grounds including, amongst others, bias of the building control official as well as the fact that the necessary level of compliance with section 7(1)(b)(ii) of the Building Standards Act was not met. Section 7(1)(b)(ii) specifically deals with refusal of the approving building plans if certain disqualifying factors, such as the fact that a building can be unsightly or will derogate from the value of the adjoining or neighbouring properties, is present.
Madlanga J (with whom Moseneke ACJ, Skweyiya ADCJ, Dambuza AJ, Jafta J, Khampepe J, Majiedt AJ and Zondo J concurred), dismissed each of the grounds on which Mr Turnbull-Jackson relied. The central dispute, however, addressed the two different interpretations of section 7(1)(b)(ii) of the Building Standards Act.

Mr Turnbull-Jackson in his grounds for review, relied on the interpretation given to section 7(1)(b)(ii) in the Constitutional Court case of Walele v City of Cape Town and Others 2008 (6) SA 129 (CC). The municipality in turn relied on the Supreme Court of Appeal (SCA) case True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) where the SCA expressly did not follow the Walele case. The True Motives interpretation states that the local authority must only refuse to grant approval of building plans if satisfied that the disqualifying factors will in fact or probably eventuate. This differs from the Walele case’s approach requiring the local authority to approve plans only if it is satisfied that the disqualifying factors will not eventuate before granting approval.
At the core of the Walele-True Motives dispute is the principal of judicial precedent, a core component of South African law. This principle entails that courts must follow and are bound to decisions of higher courts. Only the ratio decidendi, or the reason for the judgment, needs to be followed and not any remarks that have been made in passing. The question is raised whether the SCA in True Motives erred by not following the judgment of Walele.
The Constitutional Court had to determine whether the interpretation of section 7(1)(b)(ii) in Walele was made in passing, and if not, whether the interpretation was incorrect. Only in those two instances the SCA could depart from the Walele decision.
Madlanga J held that the interpretation of section 7(1)(b)(ii) in Walele formed part of the rationale behind the decision. The decision itself in Walele took into consideration the possibility of harm to the owner and occupants of the property to be developed, and the fact that a development may have adverse effects on the rights of owners of neighbouring properties. It is for this reason that in Walele the court interpreted section 7(1)(b)(ii) to mean that local authority can only approve plans if it is satisfied that the disqualifying factors will not eventuate. As a result Madlanga J upheld the decision as being correct and stated that in the particular set of facts of Turnbull-Jackson there was no improper exercise of section 7(1)(b)(ii).
The reasons advanced by the SCA for its departure from Walele did not justify the course adopted. The SCA erred in not following the Walele decision. Madlanga J made it clear that all courts, including the SCA, are bound to follow decisions of the Constitutional Court and only in specific instances are lower courts allowed to depart from judgments. The importance of precedents was emphasised when the Constitutional Court quoted Judge Cameron who stated, “Without precedent there would be no certainty, no predictability and no coherence.”

Since the Labour Relations Act 66 of 1995 (“LRA”) first came into action, the essence of the fixed term contract of employment and its existence have been questioned by both the CCMA and the Labour Court. Many Employers employed employees on a fixed term basis due to the fact that it seemed like the “easier way out” and that it supposedly meant that Employers had the power to somehow boycott the workings of the LRA, Schedule 8 of the LRA as well as the Basic Conditions of Employment Act 75 of 1997.
Employers also used these supposed fixed term contracts to their advantage by continuously renewing the contracts upon its termination, sometimes on a month-to-month basis, only to inform employees on the last day of a month that their services are not required anymore and that they should have been aware of the fact that this termination could have happened on any given time due to the nature of their employment contracts.
The Labour Relations Amendment Act (“LRAA”) however, tells a different story.
The Labour Relations Amendment Act was assented by President Jacob Zuma on the 14th of August 2014 and so it proposed that the Act will be in full force before the end of 2014.
The LRAA, in Section 198B, defines a fixed term contract as a contract of employment that terminates on the “occurrence of a specified event, on the completing of a specified task or project, or on a fixed date other than an employee’s normal or agreed retirement age”.
The LRAA specifically states that in the event that a fixed term contract is entered into between an employer and an employee, a justifiable reason has to be given for the nature of the contract. The LRAA refers to the following reasons as being justifiable:

1. Replacement of another employee who is temporarily absent from work
2. A temporary increase in workload (not exceeding 12 months)
3. Student / recent graduate employed for training purposes or to gain work experience;
4. Project specific work with a limited duration;
5. Non-citizens with working permits for a specified period;
6. Seasonal work
7. Official public works and or public job creation schemes;
8. Positions funded by an external source for limited periods;
9. After the normal / agreed retirement age has been reached;
10. Any other justifiable reason.

These justifiable reasons however, are not the only factor that needs to be considered when regard is being given to the new legislation for fixed term contracts. The offer, renewal and or extended offer for fixed term contracts must be in writing and must contain specific reference to the reasons as to why this is a fixed term contract, the essence of which has to be justifiable.
Inference is also drawn to Section 198B(8)(a) of the LRAA wherein it is stated that an employee who is employed in terms of a fixed term contract for a period longer than three months, must not be treated “less favourably” than an employee employed on the same and or similar terms and more specifically on a permanent basis, unless there is once again a “justifiable reason” for the different treatment.

A grace period of three (3) months after the commencement of the Labour Relations Amendment Act 2014 will be granted to all Employers to remedy their existing fixed term contracts of employments with employees that are not in accordance with the subsection referred to.
It is also noted that an employee employed on a fixed term basis for a period exceeding 24 months, upon expiry of the contract, has to be paid one week’s remuneration for each completed year of the contract calculated in accordance with Section 35 of the Basic Conditions of Employment Act 75 of 1997.
Based on the new amendments it is therefore made abundantly clear that fixed term contracts need to be entered into mindfully by Employers, as it appears as if they are here to stay and will not easily be hoodwinked.

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In the decision of Ludick v Rural Maintenance (Pty) Ltd [2014] 2 BLLR 178 (LC) the Labour Court was confronted with two previous conflicting decisions by the same Court, when it was called upon to interpret a clause in the Applicant’s contract of employment.
The Applicant’s contract of employment provided that any annual leave not taken within 30 days of the employer’s financial year end, would lapse.
The court referred to Jardine v Tongaat – Hulett Sugar Ltd (2003) 7 BLLR 717 (LC), a previous judgment on this topic, in which the court held that annual leave which is not taken within 6 months, after completion of the annual leave cycle, is not automatically forfeited by the employee, nor is any right of payment in respect of that leave, upon termination of the employee’s employment.

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In the Jardine matter it therefore appeared that employees were able to utilize their accumulated leave entitlement indefinitely and beyond the 18 month period contemplated by the BCEA.
The Court also had regard to another conflicting Labour Court matter. In the matter of Jooste v Kohler Packaging Ltd [2003] 12 BLLR 1251 (LC) the Labour Court held that the BCEA contemplates payment only in respect of the leave cycle immediately preceding the uncompleted leave cycle during which the termination takes place. To hold otherwise, the court held, would allow parties to circumvent the Act.
In the Ludick-matter however, the Court resolved this conflict by first dealing with the clause in the Applicant’s contract of employment, with reference to Section 5 of the BCEA.
This Section provides that the BCEA will not be affected by an agreement between the parties and accordingly employers cannot contract out of the provisions of the BCEA.

The Court therefore found that an employee was entitled to utilize their accumulated leave for a period of 6 months after the previous leave cycle as provided for in Section 20(4) of the BCEA and that the period can therefore not be shortened by any agreement between the parties.

The Court then resolved the conflict by determining that an employee will only be entitled to the accumulated annual leave which accrues in the previous leave cycle, as well as that leave which accrues in the current and uncompleted leave cycle, subject to the 18 month period referred to above.

Leave therefore not taken during the annual leave cycle, or within 6 months thereafter, shall be forfeited as envisaged by Section 20(4) of the BCEA.
It is very important for employers to take note that the abovementioned principles only apply to statutory leave granted in terms of the BCEA and therefore the 15 annual leave days referred to in the Act.
Any leave therefore in excess of this statutory minimum, is not regulated by the BCEA, but by the contract of employment itself.
Employers who grant leave over and above the statutory minimum, should therefore take heed and consider concluding agreements dealing with the utilization and or forfeiture of such additional contractual leave.