Month: October 2014

Who is liable for the damages caused due to a motor vehicle accident?

A1blWhat will happen to my vehicle after I have been involved in a motor vehicle accident and who will be responsible for the damages? 

Over and above the emotional and economical tension it causes a person and his family, there will always be legal principles that apply.

The most prominent legal field that will apply when a person is involved in a motor vehicle accident is the law of delict. The law of delict will play an important role in determining who will be liable for the damages, if any. If the damages were caused due to the intentional or negligent conduct or omission of somebody else (the third party), the third party would be liable for the damages the car owner suffered. The third party is, however, not without a few defences, but that falls outside the scope of this article.

Another important legal doctrine to be observed in litigation is the doctrine of subrogation as it applies in the law of indemnity insurance. It is an accepted principle of indemnity insurance law that when an insurer fully indemnifies an insured party in the case of loss caused by a third party, the insurer has a claim against the third party in the name of the insured. The policy behind this doctrine is to prevent the insured party from receiving double compensation from both the insurer and the third party.

From a procedural point of view, the insurer obtains the right to institute legal proceedings against the third party in the name of the insured party if the insured party still has an unsatisfied claim against the third party. This principle allows the insurer to become dominus litis (master in the proceeding), but only in name and on behalf of the insured party. The insurer becomes entitled to conduct the proceedings in the name of the insured party provided that the insurer has fully indemnified the insured party and has also indemnified the insured party against the risk of legal costs which may arise from the proceedings. The insurer has no independent claim against the third party, but simply enforces the claim of the insured party for the insurer’s own benefit.

In summary, the car owner will be able to hold the third party liable irrespective if he has insurance or not. If the car owner has insurance he will be able to claim the damages from his insurance and if he does, the insurance will be able to recover the loss in the name of the insurer from the third party. The relationship between the insured and the insurance is a contractual relationship and if any party fails to perform in accordance with the agreement that party will be liable for breach of contract.

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.

Are restraint of trade agreements always valid and enforceable?

A2blHistorically restraint of trade agreements were void and unenforceable unless the employer could prove that it was a reasonable agreement entered into between the parties. Fortunately for employers the position in our law has changed.

What are restraint of trade agreements?
An agreement that seeks to restrict a party’s right to carry on a trade, business or profession in such manner or with such persons as he/she sees fit, is restraint of trade.

Restraint of trade clauses are most commonly found in employment and partnership contracts, which usually takes effect after termination of the contract, or in sale of a business or practice.

Why are they controversial?

They are controversial because there is a clash of fundamental values: on the one hand there is freedom or sanctity of contract which relies on agreements being honoured, and on the other hand there is freedom of trade which is a constitutionally recognised right.

As with other contracts, restraint of trade agreements are presumed to be prima facie valid and enforceable. Whereas the onus had earlier been on the employer to prove that implementation of restraint of trade was fair and in public interest, the onus is now on the employee to show why enforcement in the particular circumstances would be against the public interest.

An unreasonable restraint is contrary to the public interest and hence unenforceable. The reasonableness of a restraint of trade clause or agreement is judged on two bases: broad interests of community, and interests of the parties themselves.

Reasonableness inter partes depends on a variety of factors:

  • Does the employer have a protectable interest?
  • Area and duration of restraint (possibility of partial enforcement)
  • Concession by the employee in the contract that restraint is reasonable, and inequality of bargaining power of parties (these factors carry little weight)

Examples of protectable interests are confidential information, trade secrets, customer connections and lists, and goodwill of the business. However, it does not include interest in the elimination of competition, and the investment of time and capital in the training of the employee.

It is not sufficient simply to label confidential information as such. In order to be confidential the information must be commercially useful, in other words capable of application in trade or industry, have economic value to the person seeking to protect it, and be known only to a restricted number of people.

With regards to trade connections, it will only be relevant when the employee has close working relations with the customers, to such an extent that there is a danger of him/her taking them with him/her when he/she leaves the business. Relevant factors here include the following:

  • duties of the employee;
  • his/her personality;
  • frequency and duration of the contact with the customers;
  • his/her influence over them;
  • nature of his/her relationship with them (degree of attachment, extent of their reliance on him/her);
  • level of competition between the rival businesses;
  • type of product sold; and
  • evidence that customers were lost when he/she left the business.

With reference to the above the following questions must be asked:

  1. Does party A have an interest deserving of protection?
  2. Is such interest being prejudiced by party B?
  3. If so, how does A’s interest weigh up qualitatively and quantitatively against B’s interest in not being economically inactive and unproductive?
  4. Is there some broader facet of public policy that requires the enforcement or rejection of the restraint?

If restraint of trade agreement is reasonable inter partes, it may still be unenforceable if it is damaging to the public interest for a reason not peculiar to the parties.

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.

Sources:

Basson v Chilwan & Others [1993] 3 SA 742

Sunshine Records (Pty) Ltd v Flohing & Others 1990 (4) SA 782 (A)

Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)

Sexual harassment in the workplace

A3blThe idea of “the corporate workplace” has changed significantly in recent years and nowadays there are more women to be found in positions that were previously filled only by men. Unfortunately this has given rise to the issue of sexual harassment in the workplace. In this article we focus on what sexual harassment is and what someone can do if they are being subjected to it.

Both men and women can be victims of sexual harassment; however, it is more common for this type of harassment to be directed at women in the workplace. According to Section 6(3) of the Employment Equity Act[1] (EEA) harassment of an employee is a form of unfair discrimination and is prohibited on any of the grounds of unfair discrimination, which includes gender. The test for sexual harassment, as set out in Item 4 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the Code), is whether the conduct is unwelcome, of a sexual nature, violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account the following factors:

  1. Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
  2. Whether the sexual conduct was unwelcome;
  3. The nature and extent of the sexual conduct; and
  4. The impact of the sexual conduct on the employee.[2]

There are three types of conduct that can constitute sexual harassment:

  1. Physical conduct such as touching;
  2. Verbal conduct such as innuendos; and
  3. Non-verbal conduct such as showing another person sexually explicit photographs.[3]

Certain types of sexual harassment are common in the workplace. One such type is quid pro quo harassment, which is where someone is forced to give in to sexual advances to avoid losing their job or a job related benefit. Another type is sexual favouritism where only those who submit to sexual advances can progress or receive benefits in the workplace. There is also sexual victimisation, where those who do not submit to sexual advances are prejudiced. Lastly we have the scenario where jokes, pictures or innuendos create a hostile working environment which need not be directed against one specific employee.[4]

According to Item 8 of the Code there is an obligation on employers to develop clear procedures to deal with sexual harassment, which should enable the resolution of problems in a sensitive, efficient and effective way. Section 60(1) of the EEA provides that conduct in contravention with its provisions must immediately be brought to the attention of the employer. This means as soon as is reasonably possible in the circumstances and without undue delay, taking into account the sensitive nature of sexual harassment, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace. The victim of the sexual harassment need not be the one to bring it to the attention of the employer; any other person who is aware of the sexual harassment may also do so.[5]

Once the sexual harassment has been brought to the attention of the employer the employer should consult all the relevant parties, take the necessary steps to address the complaint in accordance with the Code and the employer’s policy, and take all the necessary steps, which are set out in Item 8.3 of the Code, to eliminate the sexual harassment.[6]

A complainant or another person may choose to follow an informal procedure, the first of which is to explain to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her work. The second way of handling this is for an appropriate person to approach the perpetrator, without revealing the identity of the complainant, and explain that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable and interfere with their work.[7]

If a complainant does not find the abovementioned satisfactory then he or she can follow the formal procedure set out in an employer’s sexual harassment policy and/or collective agreement, which should outline with whom the employee should lodge a grievance, the internal procedures to be followed and time frames which will allow the grievance to be dealt with expeditiously.[8]

If the complainant is still not satisfied with the results a complaint of sexual harassment may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). It is important to note here that it is a disciplinary offence to victimise or retaliate against a complainant who in good faith lodges a grievance of sexual harassment.[9] 

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.

Reference List:

Employment Equity Act, 55 of 1998

Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (4 August 2005)

A C Basson, M A Christianson, A Dekker, C Garbers, P A K le Roux, C Mischke, E M L Strydom: Essential Labour Law 5 ed (2009)

 

[1] 55 of 1998

[2] Item 4 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

(4  August 2005)

[3] AC Basson, MA Christianson, A Dekker, C Garbers, PAK le Roux, C Mischke, EML Strydom: Essential Labour Law 5

ed (2009) 223

[4] Basson et al: Essential Labour Law 5 ed (2009) 223

[5] Item 8.1 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[6] Item 8.2 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[7] Item 8.6 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[8] Item 8.7 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

[9] Item 8.7 of the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace

Maintenance: Not only for children

A4blWhen the word “maintenance” is mentioned, many people think of women claiming maintenance for minor children, or alternatively, women claiming maintenance from their ex-husbands. However, in this article we will deal with parents claiming maintenance from their adult children.

Mike Larry received a summons from the Maintenance Court to appear three weeks later for a maintenance matter, however Mike had no children or wife and was quite confused, thinking that perhaps the Court had made a mistake. Mike attended the Maintenance Court in order to enquire whether there had been a mishap in the documentation. However, what Mike found out made his heart sink, and soon his bank account, too.

Mike’s father, Jermaine, had made an application at the Maintenance Court for maintenance from Mike as he had no job and therefore no income. Mike asked his lawyer whether this was even possible and the answer was affirmative.

According to the Maintenance Act 99 of 1998, parents and children have a reciprocal duty of support. A child has a duty to support his/her parents and grandparents, but always subject to the rule that support must be claimed from one’s nearest relatives first. The basis of a child’s duty to support their parents is the sense of dutifulness or filial piety (relating to or due from a son or daughter). In certain circumstances even minor children may have to support their parents. As always, the criteria which must be present is a need on the part of the person to be maintained, and the ability to support on the part of the person from whom support is claimed. A parent who claims support from a child must prove his or her need and the child’s ability to support the parent. As mentioned above, a more stringent criterion of need is applied to parents than to children; indigence on the part of the parent is stated to be a requirement.

Our authorities are not entirely clear on this point. In Oosthuizen v Stanley the court spoke of “the quality and condition of the persons to be supported”. In the same case it was pointed out that where a parent must be supported it is not only the parent’s own needs but also those of the parent’s dependents which must be considered. In Van Vuuren v Sam Rabie, the Judge referred to the same criterion but stressed that the support of parents must be confined to the basic needs which are food, clothing, shelter, medicine and care in times of illness. Relying on the case of Surdus v Surdus, the Judge said that, in assessing the quality and condition of life of the person to be supported, it is primarily his present, not his past situation which is considered, but that in assessing these the Judge should exercise his discretion. For instance, a previously wealthy parent who has fallen on hard times should not be compelled to eat peasants’ food. It has been argued that the criterion of need should not be so narrowly interpreted here as to destroy the whole concept of a reciprocal obligation.

However, the following can also be considered when a parent makes an application for maintenance from his/her child:

  1. Siblings;
  2. Extra income; and
  3. Quality of living.

In terms of the common law an extramarital child has a duty to support his/her mother, but whether or not he/she must support his/her father has yet to be decided. It can, however, be argued that an extramarital child would be liable to maintain his/her father in terms of Section 16 of the Children’s Act 38 of 2005.

In conclusion, if you feel you are being unfairly targeted for a maintenance claim, be sure to consult with your attorneys so they can inform you of your rights and responsibilities.

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.

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