Medical and Psychological testing: Is passing a requirement?

As a point of departure: according to section 7 and 8 of the Employment Equity Act, 55 of 1998 (“the Act”), employers are prohibited from performing medical- and psychological testing, or any other similar assessments, on employees. Employees, though, are often required to pass medical or psychological testing before they are considered for a certain vacancy. Such tests will only be lawful when legislation requires or permits the testing or when the employer can justify the reason for the testing.

According to section 7 of the Act, the employer may justify the prerequisite of a medical test in light of medical tests, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the specific job.

While psychological testing or any other similar assessment may only occur when the results thereof have been scientifically shown to be valid and reliable, when such testing can be fairly applied to all employees, and lastly, that such tests will not bias any employee or group.

Furthermore, section 9 of the Act states that “employee” includes an applicant. Therefore, the aforesaid provisions are applicable to both employees that are currently employed by an employer and the applicants who are currently seeking employment.

So, what happens when the employer does not make it clear why the medical, psychological or any other similar assessment is required?

In the case of EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC), the Labour Court was given the task of deciding whether a clause,  in the employment contract of an employee suffering from bipolar disorder, which gives the employer the discretion of having the employee undergo medical testing whenever the employer deemed it necessary, was lawful.

A clause in the employee’s contract provided:

‘The employee will, whenever the company deems necessary, undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The employee gives his/her irrevocable consent to any such medical practitioner making the results and record of any medical examination available to the company and to discuss same with such medical practitioner. The above shall include and apply to psychological evaluations.’

The employee, however, refused to undergo the said testing and one of the main issues which the Labour Court had to decide on was whether the provision was enforceable; and whether her dismissal for failing to submit to a medical examination was automatically unfair in terms of s187(1)(f) of the Labour Relations Act (LRA) 66 of 1995.

The court held that the section provides no exception based on the consent of the employee in an employment contract and that medical testing will only be permitted in the circumstances set out in section 7 or 8 of the Act, which did not find application in this case. The court also found that the instruction to undergo psychiatric testing on account of the employee’s bipolar condition amounted to unfair discrimination in terms of section 6 of the Act. The dismissal of the employee for refusing to undergo a psychiatric evaluation to determine her fitness to work was found to be an automatically unfair dismissal in terms of s187(1)(f) of the Labour Relations Act, 66 of 1995.

Employers are, however, still able to use arguments such as “employment conditions” or “inherent requirements of a job”, to “cover up” certain tests. This will result in applicants being rejected or the results of such tests being used as grounds for dismissal. To make sure whether such conditions or requirements will justify the rejection or dismissal, it is important to look at the nature of the specific job in question, the general practice and the history of the employer’s employment conditions and inherent requirements of the job to evaluate whether the decision was fair.

Employers are only allowed in limited circumstances to require that employees undergo medical- and psychological testing or any other similar assessments. Should there be a clause in the employment agreement which provides for such testing, which was signed by the employee, it does not necessarily mean that such testing will be lawful. It is important to note whether such a clause is in line with the Act.

Reference List:

Employment Equity Act, 55 of 1998.

EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC).

Labour Relations Act, 66 of 1995.

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)

Does living in a secured estate give a false sense or true sense of security?

Choosing to live in a secured residential estate in South Africa is becoming ever more popular with South Africans. Entering your estate whilst security guards watch out for unknown assailants that may enter, living in your home peacefully knowing that the security guards are ensuring that people may only enter with your permission, giving the home owners a sense of security. But is this a true sense of security or is it false, and if the unfortunate happens that you are robbed or assaulted in your home, who is responsible? The Home Owners’ Association? The security company?

A Home Owners’ Association (HOA) is a body/committee comprising of the home owners of a specific estate entrusted with the running of the estate and communal affairs of those that own homes there.

On the 28th of August 2018, Judge J Unterhalter of the Gauteng Local Divison High Court handed down judgment in a matter of Van der Bijl and Another vs Featherbrooke Home Owners’ Association and Another. The Van der Bijls, home owners in a secured estate, brought an action against the (HOA) and the security company for failing to secure their safety, as their property was invaded by robbers.

On the 8th of April 2014, robbers unlawfully gained access into the estate during the night and then proceeded to enter the Van der Bijls’ home. Mr Van der Bijl suffered a gunshot wound to his abdomen and Mrs Van der Bijl sustained injuries from being assaulted. Due to these injuries, the Van der Bijls claimed damages from the HOA and the security company, alleging that the HOA and security company were wrongful in their duty to care and were negligent as they failed to take measures to ensure their safety.

The HOA defended the action and took exception to the Van der Bijls’ cause of action, citing that the HOA did not have a legal duty to take steps to protect the Van der Bijls from the robbery, thus there was no wrongfulness or negligence on their part. The court’s stance is that wrongfulness and negligence are two separate requirements of Aquilian liability. Where wrongfulness concerns the issue as to whether the law imposes liability by recognising a legal duty resting upon the defendant to prevent the harm that the plaintiff suffered, negligence concerns the defendant’s conduct judged against the standard of whether a reasonable person would have foreseen the harm and guarded against it, inter alia, a defendant may be burdened with a legal duty to prevent a harm, but his/her conduct may be blameless because the harm was not reasonably foreseeable. Thus, a defendant may be negligent but not act wrongfully because there was no duty to prevent the harm.

The HOA took exception to the plaintiff’s particulars of claim inter alia, it did not have a legal duty to protect the Van der Bijls from the robbery, citing that the Van der Bijls did not make a case for Aqulian liability as there was no wrongfulness. The plaintiff’s counsel relied heavily on the decision of the Loureiro case, wherein the Constitutional Court held that a private security company, who was employed and remunerated for crime preventing, owed a duty to stop avoidable harm. The Constitutional Court went to express the opinion that there would be wholesome deterrent effect if private security firms were not insulated from their own mistakes. Thus, the plaintiff’s counsel submitted that, as in the Loureiro case, the security company employed by the HOA had a duty to protect the residents of the estate including the Van der Bijls and the HOA bears the same duty. But the two cases do not bear the same facts, inter alia, Loureiro did not decide that Mr Loureiro, by hiring a security firm, was under any duty to secure the house, it was the security company that owed the duty to protect Mr Loureiro and his family. So the fact that the HOA employed the security company to provide security for the estate does not simply follow on that the HOA owed the same duty as that assumed by the security company. Such a duty would have to be shown to exist apart from what the security company had undertaken to do. But yes, following the logic of Loureiro, it is the security company that owed a duty to the HOA and the members it represents.

Hence the Van der Bijls may have recourse against the security company and they are one of the defendants. Further, it was noted that the robbers/assailants that caused the harm were not sued and which the plaintiff will have a claim against.

While the Van der Bijls definitely enjoy fundamental rights to security of the person, bodily, physical and psychological integrity, dignity and privacy, and these rights were infringed by being assaulted in their home, the big question is from whom can these rights be claimed. The answer is, you will have a   claim against the assailants, and based on the Loureiro case, the security company, but the Judge failed to see how the HOA, which is an extension of the collective will of the estate home owners, is burdened with the duties to secure these rights. Should the home owners be burdened with these duties, then the question is, does my neighbour have a duty to protect me in my home? He or she may come to your aid and he/she may be described as being valiant to do so but it is not out of duty. Further, there was no contractual obligation, be it in the Memorandum of Agreement or written agreement  between the HOA and the home owners,  holding the HOA liable for protecting the Van der Bijls.

In conclusion, the court found that the plaintiff’s particulars of claim did not set out a cause of action, which follows that the HOA did not have a legal duty to protect the home owners, in particular, the van der Bijls, hence not wrongful.

So, the next time you are thinking of buying a property in an estate, make sure you read the Memorandum of Agreement and understand your rights as a home owner.

Reference List:

Van der Bijl and Another v Featherbrooke Estate Home Owners’ Association (NPC) and Another; In Re: Featherbrooke Estate Home Owners’ Association (NPC) v Van der Bijl (12360/2017) [2018] ZAGPJH 544; 2019 (1) SA 642 (GJ) (23 August 2018)

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)

Are exclusionary clauses in hospital contracts valid?

The CPA contains certain outright prohibitions on the terms that can appear in contracts, the so-called “blacklist items”. Section 5(1) of the Act provides that a supplier (doctor/hospital) must not make a transaction or agreement subject to any term or condition if it directly or indirectly purports to waive or deprive  a consumer (patient) of a right in terms of the Act or avoid a supplier’s obligation or duty in terms of the Act, that would amount to an attempt to avoid a supplier’s obligation under the Act.

In terms of Section 54(1) of the Act, a hospital is also obliged to provide quality medical services. Upholding an exclusionary clause would shield the hospital from liability in breach of its duty to render quality medical services, which would be contrary to long-standing professional standards of conduct and ethical rules which all care services swear to uphold.

Section 51(3) of the Act also provides that exemption of liability for loss or damage due to gross negligence will no longer be permitted in the South African law of contract and such prohibited terms are void and unenforceable.

The regulations governing the Act also provide a list of contract terms which are presumed not to be fair and reasonable, namely Regulation 44(1) provides that a term in a consumer agreement between a business or professional and a consumer is presumed to be unfair if it has the purpose and effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier”.

Sections 54 and 55 of the Act provide for both quality services as well as safe and quality goods for the consumer/patient. Section 56 creates an implied warranty as the supplier (amongst others) warrants that the goods comply with the required quality standards. In addition to the consumer/patient’s common law right to claim damages for breach of contract, the Act also warrants a consumer’s right to quality service “in a manner and quality that persons are generally entitled to expect”.

Only having regards to the above provisions, it is likely that the CPA will entirely abrogate the principles laid down by the SCA in the Afrox case. This will bring South Africa in line with foreign jurisdictions regarding medical liability, specifically in respect of exclusionary clauses in hospital contracts. In short, it can safely be assumed that exclusionary clauses in hospital contracts are no longer valid.

It can therefore be argued that it is likely that any type of exclusionary clause, at least where it appears in a hospital contract, will no longer be valid in light of the CPA, especially when regard is had to comparative case law dealing with what should be regarded as an unfair, unreasonable or unjust term.

The effect that the CPA will have on exclusionary clauses and the law of contract in a wider sense will have to be determined by the courts. Except in a few limited respects, the CPA does not apply retrospectively and, as such, contracts entered into prior to 1 April 2011 cannot be attacked on their exclusionary clauses in terms of the CPA. Case law such as the Afrox case will still be a determining factor in the outcome of these matters.

 

Reference List:

  • The Consumer Protection Act, 68 of 2008
  • Afrox Healthcare Beperk v Strydom 2002 (6) SA 21 (SCA)

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)

Landlords & tenants: Can a tenant cancel a lease?

When it comes to cancelling a lease early, both landlords and tenants must be aware of their responsibilities. It’s important to note that the Consumer Protection Act (CPA) has been put in place to protect consumers and it has changed the way that South Africans do business. The CPA also protects tenants in cases where they want to cancel a lease early.

According to the CPA, if a tenant provides the landlord with 20 business days’ notice, the tenant has every right to cancel the lease early. However, this does not mean that a tenant can just pack his/her bags and leave the property without facing some sort of penalty or financial repercussion. These penalties and financial repercussions can include a fair cancellation fee, cost of advertising as the landlord would have to advertise to find a new tenant to take the place of the old tenant, and any other costs deemed reasonable in the case that a landlord cannot secure a tenant in such a short time period.

It’s important to note, although a landlord can expect the abovementioned payments, a landlord cannot, under any circumstances, withhold a tenant’s deposit or expect the tenant to pay rent for the remainder of the lease. A landlord can also not charge a ridiculous and unreasonable cancellation fee. Additionally, a landlord may not withhold the deposit instead of charging a cancellation fee. Landlords tend to think that they can withhold deposits for almost any reason, and this is most certainly not the case.

Unfortunately, there are landlords who ignore the CPA and insist that the tenant pay rent until the lease comes to an end when a tenant cancels the lease early. So, is there anything a tenant can do if the abovementioned is the case? Yes. A tenant can approach the National Consumer Tribunal for assistance or contact the Rental Housing Tribunal.

Tenants need to ensure that they read the lease agreement very carefully before signing and to also make note of any provisions made in the lease agreement concerning the early cancellation of the lease as per the CPA. It is expected of landlords to be up to date and aware of the provisions laid out for early cancellation of the lease, but some are not, and this can cause immense problems for tenants. If your prospective landlord refuses to recognise the fact that you may cancel your lease early, consider renting another property. Also, consider renting a different property if the landlord insists on harsh repercussions in the case of early cancellation of the lease.

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 do our courts interpret Wills and Testaments?

It is trite that the law of succession aims to give effect to the wishes of the testator. Accordingly, when a person passes on and leaves a will or a testament, it is the duty of the court interpreting the will or testament to make an order that obeys the wishes of the testator as far as legally possible.

This article will look at the two competing approaches taken by courts in the interpretation of wills and testaments – namely the golden rule and the use of armchair and extrinsic evidence – and attempt to identify the current approach taken by our courts.

The Golden Rule

The starting point for the interpretation of wills and testaments is the golden rule established in the case of Robertson v Robertson’s Executors 1914 AD 503. In this case, it was held that courts are to “ascertain the wishes of the testator from the language used. And, when these wishes are ascertained, the Court is bound to give effect to them, unless it is prevented by some rule or law from doing so”.

In other words, the golden rule holds that courts must ascertain the wishes or intentions of the testator by merely looking at the language used by the testator. Accordingly, this rule makes no provision for courts to have regard to external factors when interpreting the testator’s language.

The rationale for restricting courts to the words used by the testator in their will or testament is because the testator’s words are the primary indication of their intention. Therefore, the courts are often reluctant to depart from the ordinary or literal meaning of the words used by the testator.

However, there have been some significant developments in the approach of our courts to the interpretation of wills and testaments since the golden rule was established. One such development is the use of armchair and extrinsic evidence in the interpretation of wills and testaments.

Armchair and Extrinsic Evidence

Armchair evidence sees a court placing itself in the position of the testator in order to determine their intention. In other words, a court puts itself in the armchair of the testator to understand their thought process in the creation of their will.

Extrinsic evidence is evidence that is obtained elsewhere, i.e. not from the will itself. Extrinsic evidence, therefore, refers to the surrounding circumstances or factors accompanying the will.

In Cuming v Cuming 1945 AD 201, it was held that armchair and extrinsic evidence may only be used if the wording of the will is ambiguous or uncertain, and the intention of the testator cannot be determined merely by examining the wording used in the will.

In other words, when armchair and extrinsic evidence is used in situations where the testator’s use of language is ambiguous, the courts can step into the shoes of the testator and investigate the surrounding circumstances of the creation of the will in order to determine the testator’s intention at the time of creating the will.

However, this line of reasoning has been challenged. In Allen v Estate Bloch 1970 (2) SA 376 (C), the court held armchair evidence to be admissible in cases where there is no ambiguity or uncertainty regarding the words that the testator used in their will. In this case, the court held that the correct approach is that a will should not be analysed in isolation. It is seen as a more practical approach to ascertain the intention of the testator, as it takes into account all the relevant factors surrounding the creation of the will.

Conclusion: What is the Approach of Our Courts?

The case law regarding whether or not the golden rule is still adhered to by courts remains inconclusive. The magnitude of case law seems to suggest that, to a large extent, our courts do not follow the golden rule, but rather follow the reasoning of the Cuming case, which allows for the use of armchair and extrinsic evidence only where the wording used by the testator is ambiguous.

To summarise, it is evident that our courts still use the golden rule as the starting point for interpreting wills and testaments, but it is generally no longer used in isolation.

Reference List:

  • Robertson v Robertson’s Executors 1914 AD 503.
  • Jamneck, et al The Law of Succession in South Africa 2 ed (2012).
  • Cuming v Cuming 1945 AD 201.
  • Allen v Estate Bloch 1970 (2) SA 376 (C).

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)

Amendment to High Court Rules effective from 1 July 2019 – What is new?

Rule 32

Rule 32(1) determines the following: “The Plaintiff may, after the Defendant has delivered a plea, apply to court for summary judgment on each of such claims in the summons as is only:

  • On a liquid document;
  • For a liquidated amount in money;
  • For delivery of specified movable property;
  • For ejectment.”

Previously, an application for summary judgment had to be brought within 15 days after the notice of intention to defend was delivered, now it is after the plea was delivered. The effect of this amendment is that a trial will be run on papers by way of the application procedure.

The benefit of the new rule is that by allowing for the plea to be filed, summary judgment applications where the Defendant has a bona fide defence will be avoided, because the Defendant is now given the opportunity to file his plea before the Plaintiff can apply for summary judgment. Previously, if the Defendant had a bona fide defence, it would have been set out in the opposing affidavit to the summary judgment application, which would later be duplicated in the Plea if the summary judgment application was not successful.

 Rule 32(2)(b) determines the following: “The Plaintiff shall in the affidavit referred to in sub-rule 2(a) verify the cause of action and the amount, and identify any point of law relied upon and the facts upon which the Plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial.”

Previously the rule said that you had to state that there is no bona fide defence to the action and that the Plaintiff merely delivered a notice of intention to defend for the purpose of delaying the proceedings. Because the plea will now be delivered by the time the Plaintiff applies for summary judgment, the Plaintiff will be able to specifically attack the defence contained in the plea. Previously, the Plaintiff would not have had this information when applying for summary judgment.

Rule 32(3)(a) now determines: “The Defendant may give security to the Plaintiff to the satisfaction of the court for any judgment including costs”. Previously security was given to the registrar.

 Rule 32(3)(b) now determines that the Defendant must satisfy the court by an affidavit which shall be delivered five days before the day on which the application is to be heard. Previously the affidavit had to be delivered before noon on the court day but one preceding the day on which application is to be heard. This is also a positive change, as it will give the judge hearing the matter a chance to properly peruse the papers and go to court prepared on the day of the hearing of the summary judgment application. It will also give the Plaintiff’s attorney the opportunity to see well in advance on what basis the Defendant is opposing the summary judgment application.

Rule 36

Rule 36(2)(a) determines that any party requiring another party to submit to a medical examination shall deliver a notice to such other party. Previously the rule only provided for “such examination”, now it is specifically stating “medical examination”.

Rule 36(8) now determines that any party causing an examination to be made in terms of sub-rules 1 and 6 shall:

      • cause the person making the examination to give a full report in writing, within two months of the date of the examination or within such other period as may be directed by a judge in terms of rule 37(8) or in terms of rule 37(A)b; and
      • within five days after receipt of such report inform all other parties in writing of the existence of the report and upon request immediately furnish any other party with a complete copy thereof.

Previously no timeline was set out for the person conducting the examination to give a report and the party obtaining the report did not have to disclose the report to the other party unless requested to do so. Now it is compulsory to disclose the report within five days of receiving it. This is a positive change in the sense that it will enable opposing parties to see on what the Plaintiff bases the claim long before the matter goes to trial, which will, in turn, enable the opposing party to respond properly to the Plaintiff’s case, or to settle the matter if the Defendant realises that it would not be worthwhile to keep defending the matter.

 Rule 36(9)(a) now reads as follows: “Where the Plaintiff intends to call an expert, the Plaintiff shall not more than 30 days after the close of pleadings, or where the defendant intends to call the expert, the defendant shall not more than 60 days after the close of pleadings, have delivered notice of intention to call such expert”.

Rule 36(9)(b) now reads as follows: “In the case of the Plaintiff not more than 90 days after the close of pleadings and in the case of the Defendant not more than 120 days after the close of pleadings, such Plaintiff or Defendant shall have delivered a summary of the expert’s opinion and the reasons therefor, provided that the notice and summary shall be delivered before a first case summary management conference held in terms of rule 37A”.

Previously the Plaintiff had to disclose fifteen days before the hearing that the Plaintiff intended to call an expert witness. The Plaintiff had to deliver not less than ten days before trial a summary of the expert’s opinion.

The benefit of this new approach is that parties are forced to see to it that their case is in order and the opposing party can see what case they have to meet long before the case goes to trial, which will avoid unnecessary delays close to trial, and will hopefully have the effect that more cases will be settled before trial, as parties are in a better position to examine whether it will be worthwhile going ahead with the trial, given the evidence disclosed by the other party.

Rule 36(9)(a)

This is a new clause reading as follows: “The parties shall endeavour, as far as possible, to appoint a single joint expert on any one or more or all issues in the case; file a joint minute of experts relating to the same area of expertise within 20 days of the date of the last filing of expert reports”.

The intended effect of this clause is that it will decrease the number of expert witnesses to be called and testifying about the same aspect. Thus, parties need to agree beforehand which expert witness they are going to call on a certain aspect. What will happen when parties are unable to agree on an expert witness is still to be determined, but in all likelihood, judicial guidance by the judge will be needed in such an instance.

Rule 36(10)(a)

The amended paragraph determines the following: “No person shall, save with the leave of the court or the consent of all the parties, be entitled to tender in evidence any plan, diagram, model or photograph unless such person shall not more than 60 days after the close of pleadings have delivered a notice stating an intention to do so, offering inspecting of such plan, diagram, model or photograph.”

This again has the effect that parties need to see to it that their case is in order and disclose the evidence they are going to use at trial long before a trial takes place. Parties will now have to get all the evidence they want to present to the court in order relatively shortly after the close of pleadings.

Conclusion

The purpose of the amendments is clearly to try to speed up the process and place parties in a better position to decide whether they want to consider the settlement of the matter because they will have all the facts before them quite shortly after the close of pleadings. The summary judgment amendments will also place parties in a better position to analyse whether they will be successful with a summary judgment application or not. Hopefully, the new rules will have a positive effect on full court rolls and will ensure a faster conclusion of matters, which will be in the best interest of all parties litigating in the High Court.

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)

Assignment of guardianship and care of your children

The Children’s Act, 38 of 2005 (hereinafter referred to as the Children’s Act) governs the laws relating to the care, contact and the protection of children. The guiding principle, in all matters, is the best interest of the child.

Section 27 of the Children’s Act states:

Assignment of guardianship and care: 

(1)(a)   A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.

(b)     A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of the parent.

(2)          An appointment in terms of subsection (1) must be contained in a will made by the parent.

(3)          A person appointed in terms of subsection (1) acquires guardianship or care, as the case may be, in respect of a child-

  1. after the death of the parent; and
  2. upon the person’s express or implied acceptance of the

(4)          If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the
appointment except if the appointment provides otherwise.

The final decision (approval) concerning the appointment of a caregiver or guardian for a minor rests with the High Court of South Africa, as this Court is the upper guardian of all minor children, and it, therefore, cannot give an order contrary to the best interest of the minor. You, as the natural guardian, can make provisions in your will by appointing a fit and proper person that you wish to have as caregiver or guardian of your minor children at your death.

The child’s views must also be considered in any decision regarding the appointment of a caregiver or guardian in a will. The Act states that every child of an age, maturity and stage of development able to participate in any matter concerning him/her has the right to do so in an appropriate way. There is no set age at which children can make their own decisions, but the older and more mature they are, the more their wishes will be considered.

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)

Who is the employer? The labour broker or the client?

I was employed by a Temporary Employment Service (“TES”) to work on a fixed-term basis for a company that manufactures stationery. After working for the same client continuously for six years, I was informed that my services will no longer be needed. I want to refer my matter to the Commission for Conciliation, Mediation and Arbitration, however, who will be the responsible party?

As a vast majority of employees in South Africa obtain employment through TES or commonly known as labour brokers, it is a predicament which many are faced with when the client of a TES, suddenly and sometimes without prior notice, decides to end the employment of the employee. As the employee was providing his labour to the client and not the TES, the question arises: who is then actually the employer of the employee?

The deeming provision in s198A(3)(b)(i) of the Labour Relations Act, 66 of 1995  (“LRA”) provides that an employee of a TES not performing a temporary service for the client is “deemed to be the employee of that client and the client is deemed to be the employer…”

In a recent series of cases between Assign Services (Pty) Limited and the National Union of Metalworkers of South Africa the Labour Court, Labour Appeal Court (“LAC”) and eventually the Constitutional Court were given the task to decide who will be deemed to be the employer of an employee who was employed through the use of TES.

The aforesaid section was the crux of the matter and the two main points of argument were:  firstly, that once the deeming provision kicks in, the client of the TES becomes the sole employer of the employees, meaning that the TES employees are effectively “transferred” to the client. Secondly, that a dual employment relationship arose with both the TES and client as employers.

When the matter was referred to the Commission for Conciliation, Mediation and Arbitration, the commissioner held that the client becomes the sole employer of the placed TES employees for purposes of the LRA.

The matter was then taken on review to the Labour Court who rejected the argument that s198A(3)(b)(i) creates a sole employment relationship between the client and the placed employees. According to the Labour Court, the deeming provision augmented the employment contract between the TES and its employees and added the client as the party against whom the employees could claim their rights in terms of the LRA.

The Labour Court’s decision was then taken on appeal to the LAC. The LAC held that the TES is the employer of the placed employee until the employee is deemed to be the employee of the client and that the deeming provision becomes applicable after three months of continuous employment with the same client, the client becomes the statutory employer of the TES employee. The TES employees are deemed to be permanent employees of the client.

The matter was then referred to the Constitutional Court to make a final ruling on the matter. In a majority decision of the Constitutional Court, the ruling of the LAC was supported and accepted. The court supported its interpretation of the deeming provision by refereeing back to the whole idea of the legislator in providing protection to the TES employees. The court further held that the s198A must be contextualised within the right to fair labour practices in section 23 of the Constitution of the Republic of South Africa, 1996 and the purpose of the LRA as a whole.  According to the court, a TES’s liability only lasts as long as its relationship with the client and while it continues to remunerate the employee. As soon as the client elects to remunerate the employee directly, the TES will then not be part of the employment relationship.

In light of the Constitutional Court judgment, as soon as the employee provides services to the client of a TES for a period longer than three months, the deeming provision will become applicable and the client will be faced with the duties and responsibilities of an employer. The employee automatically becomes employed on the same terms and conditions of similar employees, with the same employment benefits, the same prospects of internal growth and the same job security that follows. This will also mean that any legal action and liability that flows from the aforesaid will also be direct against the client.

Sources:

  • Labour Relations Act, 66 of 1995
  • Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others 2018 (5) SA 323 (CC)
  • https://www.golegal.co.za/deeming-provision-lra/
  • The Constitution of the Republic of South Africa, 1996

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)

Important ingredients for the business recipe

“There are those who make it, those who sell it, and those who look after the money.”

So, you have finally taken the plunge – you have taken your hard-earned savings and decided to invest it in your new start-up. This was a natural decision for you since you have all the right technical skills, have gained valuable experience through years of diligent work at your previous employer, and you finally feel confident enough to carry the flag on your own. You are passionate, have all the necessary resolve, have done your research, and are ready to go… or are you?

Young entrepreneurs are often quickly caught up in the common misconceptions and clichés of business success – all you need is hard work and perseverance, if you are knowledgeable and good at what you do, clients will want to use your services, if you produce quality products, people will buy it, etc.

The fact is, however, that it takes much more than a quality product or service to build a successful business. You need to get the right people interested in what you are offering, to understand why it is important, and how it can positively affect their lives. Passion and resolve combined is a good foundation on which to build, but you need to think about how to establish your business brand, how to protect your intellectual property, how to place your products or services in the right markets, etc.

To facilitate these processes, it is important to understand what costs will be involved, how it will be funded, how the returns will be monitored, what key performance indicators need to be established and monitored to measure performance, and what accounting and reporting systems need to be in place to drive the above.

Although there are many very talented people in the world, there are few who have the mental and physical capacity to master all the ingredients necessary to master business success. No person is an island, and perhaps business success is less about your individual talents, than the unique talents of the team you manage to assemble.

You simply cannot be everything to everyone. So if you are embarking on your journey, let us help you facilitate partnerships to help you place your product and/or service in the right markets, and to assist you in looking after the money, while you focus on the reason you started your venture in the first place… MAKING IT!

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)

Matrimonial property regimes

My partner and I are getting married soon and have heard about the different matrimonial property regimes one can enter but I am not sure what the difference is and what each one entails.

There are three types of matrimonial property regimes in South Africa. The three are marriage in community of property, marriage out of community of property with the inclusion of the accrual system and marriage out of community of property with the exclusion of the accrual system. When parties decide on either of the two latter, they must enter into a contractual agreement with one another before a notary public. It is important to understand what they all entail before one gets married.

Marriage in community of property is the so-called “default” regime, because all marriages are deemed to be in community of property if an Antenuptial Contract is not concluded before the marriage. This is also the most popular regime because it is the easiest one to conclude. When two parties get married in community of property, their estates will be joined together. Every asset and liability each party had before getting married and acquires during the marriage will become one estate and on dissolution of the marriage, the estate will be divided equally between the parties.

This system is based on the theory that each spouse, whether employed or at home running the household, contributes equally to the marriage and on dissolution of the marriage is entitled to share equally in the joint estate. It is important to note that when one enters this type of matrimonial regime, in some instances consent will be needed from the other party. One of the biggest disadvantages of this system is that if one party incurs debt, the debt will form part of the joint estate.

When one enters into a marriage out of community of property with the accrual system, it means that the parties entered into a contractual agreement with one another, which is known as an Antenuptial Contract. This contract must be entered into before a notary public and has to be registered at the Deeds Office. In this regime, the two estates of the spouses before the marriage remain separate. No consent will be needed from the other spouse in order to handle his/her own affairs. The accrual system will be applicable at the dissolution of the marriage or upon death, whichever may occur first.

What happens with the accrual is that whatever the parties acquired during the existence of the marriage, will be compared and the half of the difference in accrual will be owed by the estate which shows a larger accrual. On dissolution of a marriage out of community of property with the accrual system, inheritances and donations received by a spouse from a third party will not be included in the accrual.

In a marriage out of community of property without the accrual system, each party’s estate will remain separate. This system enables parties to control their own estate and affairs independently and on the dissolution of marriage, the parties will retain their own assets and liabilities. It is important to note that even if parties are married out of community of property excluding the accrual system, both parties will have to contribute to the household as a married couple – it is one of the duties that arises from marriage.

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)

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