CAN I SUE A SHOPPING CENTRE IF I SLIP AND FALL?

B4By law, owners of businesses or property are required to take reasonable steps to ensure the safety of the general public. At minimum, owners or managers are required to warn the public of any potential dangers they have caused, are aware of or believe could occur.

So if a shopping centre has not met these requirements and you’re injured on their property as a result, you may have a valid claim. These are a few examples of the requirements shopping centres should have in place:

  1. demarcate dangerous areas;
  2. remove obstructions from walkways;
  3. light an area adequately;
  4. repair holes and cracks in the pavement; and
  5. put up railings or barriers.

Would my claim be valid?

The law does not require individuals to watch their every step. It is reasonable to assume that people look around them as they browse grocery shelves at the shops. A successful slip and fall claim is mainly dependent on proving that the injured person was less negligent than the owner of the premises where they were injured.

Ask yourself the following questions:

  1. Would a reasonable person, such as a property owner, foresee the reasonable possibility that his management or administration may injure another person, causing them to slip and fall?
  2. Could the property owner have done something to prevent the accident that resulted in the claim. For instance, could the occurrence of a slippery floor have been prevented and could it have been mopped up before someone climbed the stairs?
  3. Did the owner take steps to prevent the accident?

Details to collect if you want to make a claim

  1. The details (name, contact number and address) of the person in charge of the premises.
  2. Take photographs of the area where you were injured.
  3. You must contact the legal representatives of the business.
  4. You must get the relevant medical documents as well as the invoices detailing the procedures.

Reference

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. Errors and omissions excepted (E&OE)

THE CONSEQUENCES OF DRINKING AND DRIVING

B3With the festive holidays fast approaching, it’s necessary to address the consequences of drinking and driving. Unfortunately, the holidays bring devastating road accidents, with families being injured and losing members due to drunk-driving related incidents.

 What does the law say?

  1. According to the Road Traffic Act 93/96, which has been in effect since March 1998, no person shall on a public road:
  • Drive a vehicle; or
  • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.
  1. No person shall on a public road:
  •  Drive a vehicle; or
  • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while the concentration of alcohol in any specimen of blood taken part of his or her body is not less than 0,05 grams per 100 millilitres.
  1. If, in any prosecution for a contravention of the provisions of subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 grams per 100 millilitres at any time within two hours after the alleged offence, it shall be presumed, until the contrary is proved, that such concentration was not less than 0,05 grams per 100 millilitres of blood at the time of the alleged offence.

 What happens if you are caught?

  1. You will be arrested for being over the limit: If you are suspected of driving over the limit, you will be Breathalysed.
  2. Your blood will be taken: If the Breathalyser tests positive, you will be taken into custody and sent for further testing at an alcohol testing centre.
  3. You will be detained: Once you have been arrested you will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.

After your release, a docket will be opened and you will be allocated an investigating officer who will follow up your blood test results.

Conclusion

Getting behind the wheel after drinking alcohol should not be an option. People should always use an alternative option, such as getting a lift with someone else, Uber, or using a taxi. Besides the fact that drinking and driving could cost you or someone else their life, it also has severe legal consequences.

References:

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. Errors and omissions excepted (E&OE)

OWNING PROPERTY WITHOUT A WILL

B2If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

  1. State where your title deeds are kept and record any outstanding bonds and all insurance
  2. File up-to-date rates and taxes receipts
  3. Record details of the leases on any property you have
  4. State who collects your rent
  5. State who compiles your yearly accounts
  6. State where your water, lights and refuse deposit receipts are kept

If you die without a will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

  1. Only spouse survives: Entire estate goes to spouse.
  2. Only descendants survive: Estate is divided between descendants.
  3. Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
  4. Both parents survive: Total share is divided equally between both parents.
  5. One parent: Total Estate goes to the parent.
  6. One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
  7. No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
  8. No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.

References:

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. Errors and omissions excepted (E&OE)

CAN I AMEND MY WILL?

B1Having a will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and what to add him/her into your will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a codicil?

When you want to add something to your will or make a minor change, then you can make use of a codicil. A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

  1. Amendments to a will can only be made while executing a will or after the date of execution of the will.
  2. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading.
  3. When amending a will, the same witnesses who signed the original will need not sign it.

Must I amend my will after divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

  1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
  2. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.
  3. Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

 References:

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. Errors and omissions excepted (E&OE)

THE COMPULSORY ROTATION OF AUDITORS

B4Every public and state-owned company has to appoint an auditor and a company secretary. However, in terms of section 92 of the Companies Act, 2008, the same individual is not allowed to serve as the auditor or designated auditor of a company for more than 5 consecutive financial years.

What does this mean for my company?

  1. If an individual has served as the auditor or designated auditor of your company for 2 or more consecutive financial years, and then ceases the position, the individual may not be appointed again as the auditor or designated auditor of the company until after the expiry of at least two further financial years.
  2. If your company has appointed 2 or more persons as joint auditors, you must manage the required rotation in a way that all of the joint auditors do not relinquish office in the same year.

Despite the strict requirements for public and state-owned companies, it is not compulsory for private or personal liability companies to appoint an auditor, unless the company is required to produce audited financial statements.

Is this for the better?

It is understood that the external audit function is an activity of public protection and provides credibility to financial statements and assurance to investors. However, auditor rotation could lead to additional costs to companies, as the new auditor would be required to perform additional procedures on the opening balances of their new client.

In some areas, it could also impact negatively on the availability of auditors, as some towns only have a limited number of registered auditors. Auditors practicing as sole practitioners will also be affected, and could lose long-term clients unless they bring in another registered auditor and expand their practice.

References:

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. Errors and omissions excepted (E&OE)

DO MY DEBTS LAST FOREVER?

B3Prescription was introduced as means of protecting South African consumers from dishonest credit providers, who are responsible for recklessly lending credit and have contributed to the detrimental debt crisis many South Africans face today.

What does prescription mean?

  • The Prescription Act 68 of 1969 (PA) says that a debt (payment of money) is extinguished/expired after the lapse (passing) of a specific time period.
  • South Africa has different laws which specify time periods, for example, the PA says contractual and delictual debts extinguish after 3 years from when prescription starts.
  • Prescription may be delayed or interrupted.

It is important to bear in mind that not all debt prescribes after a period of three years. Debt related to a cheque, for example, only prescribes after 6 years. The purpose of prescription in South Africa is to compel creditors and collections agents to collect money owed to them within a specified period and not delay collection so that it accumulates massive amounts of interest and costs.

What are the consequences of an extinguished debt?

  • The debtor is not liable to the creditor for a debt after the time period has lapsed.
  • The creditor may not institute legal action against the debtor for a debt.

When does prescription start?

As soon as the debt is due (a debt is due once the creditor can identify the debtor and the facts from which the debt arises).

  • If the debtor prevents the creditor from gaining knowledge of the debt (excluding debts arising from agreements) prescription runs from when the creditor has knowledge of the existence of the debt.

An important point to remember is that it’s perfectly legal for a debt collector or attorney to demand payment for a prescribed debt. It is up to a debtor to raise prescription as a defence.

References:

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. Errors and omissions excepted (E&OE)

HOW TO REGISTER A TRADEMARK IN 2017

B2If you have a business and wish to keep competitors from using, or misusing, your brand, then you should consider registering a trade mark for your company’s name and logo.

A trade mark can only be protected and defended under the Trade Marks Act, 1993, if it is registered. However, 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.

 Where do I register a trade mark?

The Companies and Intellectual Property Commission (CIPC) administers the Register of Trade Marks which is the record of all trade marks that have been formally applied for and registered in South Africa.

A trade mark is only registrable if it serves the purpose of distinguishing the goods/services of one trader from those of another trader. Other points to remember include:

  1. It must not have become customary in your field of trade.
  2. It does not represent protected emblems such as the national flag or a depiction of a national monument such as Table Mountain.
  3. It is not offensive or contrary to the law or good morals or deceptive by nature or way of use.
  4. There are no earlier conflicting rights.

 How to register a trade mark?

  1. Register as a customer on CIPC: Go to the CIPC website (www.cipc.co.za). If you are already registered as a customer, and know your customer code and password, then continue with the next step.
  2. Deposit funds: Deposit the application fee of R590 regarding every class and every trade mark applied for into the CIPC bank account using your customer code as reference.
  3. Conduct a search: In order to conduct a search, you can request a special search from CIPC, or you can conduct a cursory e-search yourself.

A registered trade mark can be protected forever, provided it is renewed every ten (10) years upon payment of the prescribed renewal fee.

To make the process easier and more successful, then contact your legal adviser, who can lodge a trade mark application on your behalf and ensure all your documentation is correct.

References:

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. Errors and omissions excepted (E&OE)

SOCIAL MEDIA: WHAT LINE CAN’T I CROSS AS AN EMPLOYEE?

B1There are cases of employees posting sensitive or disrespectful information and messages about their employers online. This might seem like an innocent joke with the people on your social media feed, however, the backlash is far more serious than that. The conduct of employees on social media platforms is also more frequently exposing employers to the risk of vicarious liability and brand damage.

In considering the risks to employers (and their employees), it is necessary to keep in mind:

  1. the impact of social media on the Constitutional rights to dignity, privacy and freedom of expression;
  2. the risks that defamatory or harassing statements may result in vicarious liability for employers;
  3. the risk of work place harassment and cyber-bullying and the impact of this conduct on the work environment; and
  4. what conduct may justify disciplinary action and even dismissal.

What if an employee posts something negative about their employers?

An employer does have recourse against employees whose social media blunders cause brand damage, or result in the disclosure of confidential information or vicarious liability. The CCMA has accepted that certain conduct on social media may warrant disciplinary action. However, the ordinary principles of fairness and equity apply. When investigating such conduct, care must be taken not to unlawfully infringe rights to privacy and the provisions of the Regulation of Interception of Electronic Communications Act.

In the case of Beaurain v Martin NO & others (2014), Mr Beaurain, was employed by Groote Schuur Hospital. During his employment, he raised various complaints regarding health issues at the hospital. Each complaint was investigated and he was informed that the complaints were without merit. Getting no joy from the hospital, Mr Beaurain started posting his complaints on Facebook. Eventually, the head of Mr Beaurain’s department addressed a letter to him to inform him that he was to stop posting his claims pertaining to health risks at the hospital, on social media. Mr Beaurain did not heed this instruction. This resulted in another letter in which was given a final warning to stop the conduct.

After an angered Facebook post where he attacked the state of the hospital, he was charged with gross insubordination and dismissed. Mr Beaurain referred a dispute to the Labour Court. His dismissal was found to be fair.

Conclusion

Not all comments on social media that are critical of an employer will warrant dismissal. For example, if the post constitutes conduct in alignment with a protected strike or amounts to a protected disclosure, dismissal is not allowed. However, employees should be careful not to post information regarding their employers that could put the brand name in jeopardy or reveal confidential company information.

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. Errors and omissions excepted (E&OE)

CAN BREAKING-OFF AN ENGAGEMENT PROMPT LEGAL ACTION?

B4Once a couple has become engaged, you could say that they have concluded a verbal contract to get married. From that point, up until the marriage, the couple would be committed to getting married, as well as the planning and preparation leading up to it. However, in some instances, one of those in the relationship might decide to break off the engagement. This might seem unimportant, but what if the couple had gone to great lengths to plan the wedding and even went as far as changing lifestyles in the expectation of getting married. Would the person being left behind be able to sue for damages lost?

Does our law mention engagement?

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises two parts, namely:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words, damages for the humiliation caused as a result of the break-up of the relationship; and
  2. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

In the Supreme Court of Appeal case Van Jaarsveld vs Bridges (2010), it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

The judgement draws attention to a court’s right and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit of the Bill of Rights.

ES Cloete vs A Maritz (2013) WCH

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring, and she accepted. The relationship was turbulent and a decade later Maritz called off the engagement and the intended wedding. Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement which they had reached 10 years earlier. In his judgment, Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing, where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

The judge also said: “As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim.”

Conclusion

Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter.

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. Errors and omissions excepted (E&OE)

ANTENUPTIAL CONTRACTS: WITH OR WITHOUT THE ACCRUAL SYSTEM?

B3If you don’t have an ANC, you are automatically married in community of property. This means that there is one estate between a husband and a wife. Everything is shared equally between spouses, which includes debts. However, with an antenuptial contract, the estates of each spouse remain separate. The difference comes with the addition of the accrual system.

What is an antenuptial contract?

An ANC determines whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

What is the accrual system?

The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

  • If there is no accrual system, then the spouses have their own estates which contain property and debts acquired prior to and during the marriage – nothing is shared.
  • The underlying philosophy of the accrual system is that each spouse is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
  • The accrual system only applies if the marriage ends – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.

Whether or not you decide to include the accrual system in your antenuptial contract depends on the couple. Some may see the relevance while others do not.

It’s important that both of you consult the lawyer who’s drawing up the ANC because both spouses need to be fully aware of the consequences. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one spouse has a lot of assets and the other doesn’t, for example.

References:

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. Errors and omissions excepted (E&OE)