Month: July 2015

Tenant and landlord – What are your rights and obligations?

A3_bSandra would like to move into her own place but like many people she is unsure what a lease is and what responsibilities it will place on her. A lease agreement is defined as the agreement entered into between the tenant and the landlord for the leasing of a property. The lease agreement regulates the rights and obligations of both parties and protects the parties mutually. The Rental Housing Act No 50/1999, as amended by the Rental Housing Amendment Act No 43/2007, regulates the relationship between a tenant and a landlord, even before commencement of the lease agreement.

The Act determines that the landlord may not discriminate against the prospective tenant, his family or friends, including on grounds of race, sex, pregnancy or marital status. This applies as early as placing an ad for the leasing of a property or even during negotiations between prospective tenants and the landlord.

The lease itself does not have to be in writing to be binding on both parties and should a tenant request that an oral agreement be reduced to writing, the landlord may not refuse the request.

A written lease agreement must contain the following information:

  1. The names of the parties, as well as their South African addresses;
  2. A description of the property being leased;
  3. The monthly rental payable and reasonable increases;
  4. The deposit payable, if applicable;
  5. The period for which the property will be leased. Should the agreement not mention a specific period of lease, the agreement must indicate the notice period required should one of the parties wish to terminate the contract;
  6. Any other consideration, besides the monthly rent, which may be payable;
  7. A complete list of defects that are present at the time that the parties entered into the lease agreement.

If the property is situated in a complex that has its own rules, a copy of those rules should be attached to the lease agreement. The landlord must ensure that he/she gives effect to the provisions contained in the lease agreement.

As mentioned, mutual rights and obligations are created for both parties in the lease agreement. These rights and obligations include the following:

Tenant’s rights:

  1. To jointly inspect the property before the tenant moves in and record any defects or damage to the property. This provision protects the tenant at the end of the lease period to ensure that the tenant will not be held liable for damages that already existed at the time the lease was entered into.
  2. During the lease period, the tenant has the right to privacy and the tenant’s property, home or person may not be searched.
  3. If the landlord fails to inspect the property upon expiry of the lease, the tenant can assume that the landlord acknowledges that no damage has been done to the property, and that the full deposit, together with interest thereon, must be refunded to the tenant.

Landlord’s rights:

  1. To request a deposit, in the amount agreed upon between the parties, before the tenant takes occupation of the property.
  2. To receive timeous payment of the monthly rent and also to collect overdue payments, after a court order or order from a Tribunal has been obtained.
  3. To receive the property in a good condition upon termination of the lease.
  4. To jointly inspect the property within three days before the lease expires and determine if any damage has been done to the property for which the tenant should be held liable.
  5. To recover the cost of repairs, should the property be damaged, from the tenant.
  6. Should the tenant not give access to the property for a joint inspection before expiry of the lease, the landlord should inspect the property within seven days after expiry of the lease and utilise the deposit for necessary repairs. The balance of the deposit, if any, should be refunded to the tenant within twenty-one days.

Landlord’s obligations:

  1. To invest the tenant’s deposit in an interest-bearing account at a financial institution, with an interest rate equal to or higher than the interest rate at that time earned on a savings account at such financial institution. The tenant may request proof that the deposit is invested and the landlord may not withhold such evidence.
  2. To furnish the tenant with a receipt for each payment made by the tenant, which receipt should clearly describe the property, be dated, and indicate in full what the payment is made for (e.g. Rent for the month of February 2013, or deposit).
  3. To utilise the deposit to repair any damage to the property or to recover arrears rent after expiry of the lease, and to pay the balance together with interest earned thereon to the tenant within fourteen days after the expiry of the lease.
  4. To keep all receipts in respect of repairs done to the property which were deducted from the tenant’s deposit, and make such receipts available to the tenant.
  5. To refund the tenant’s deposit together with interest thereon, within seven days of the expiry of the lease, in the event that no repairs are to be made to the property.

Should a dispute arise between the parties, the Rental Housing Tribunal in the area where the dispute arises, can be contacted.

It is very important for both the tenant and the landlord to make sure that their intentions are clearly defined in the lease and that they understand the terms of the lease before the lease agreement is signed. All provisions, responsibilities and obligations should also be clearly set out in the agreement. It is advisable to seek legal advice if any uncertainties arise, before the lease agreement is signed.

References:

Rental Housing Act No 50/1999, as amended by Rental Housing Amendment Act No 43/2007

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

Cancellation of that gymnasium contract

A2_bWe have all made New Year’s Resolutions. This year I will start exercising, eating healthy and spend less time at the office and more with the family. In order to fulfil this resolution, you join the local gymnasium as soon as you return from your December holiday. It does not bother you whether the agreement is for two, three or four years. This year you are going to keep that resolution!

Then winter arrives and you spend more time at the office and at the fireside and less time in the gymnasium. By August you recognise the debit order of the gymnasium on your bank statement, knowing full well that you have not been there for at least two months.

The Consumer Protection Act (“the act”) has limited the effect of fixed-term agreements containing automatic renewal clauses for a further fixed term. As the legislator has given a wide definition to the words “goods” and “services”, most fixed-term agreements will fall within the scope of the act. Section 16 of the act provides that any consumer may cancel a long-term agreement with twenty business days’ notice, which notice must be in writing, unless both parties to the agreement are juristic persons.

The act then provides that the supplier may be entitled to a “reasonable cancellation penalty” payable by the consumer for cancelling the fixed-term agreement. What constitutes a reasonable cancellation penalty will depend on the type and nature of the contract.

Lester Timothy of Deneys Reitz Attorneys uses the example of a mobile phone contract, an analogy most of us will understand. A consumer enters into a two-year contract with a mobile phone service provider and simultaneously purchases a handset to be paid by monthly instalments in the course of the two-year contract. The service provider will thus have incurred expenses regarding the handset. Therefore, in the event of the consumer cancelling the contract, it will be acceptable for the mobile service provider to charge the consumer for the outstanding balance of the handset to recover the expenses incurred.

Where a supplier incurs no significant additional cost as a result of the cancellation of the contract, the supplier will have more difficulty to establish the reasonableness of any cancellation penalty unless a discount is given.

You may therefore approach that gymnasium and notify them in writing of your intention to cancel the agreement after twenty business days. Depending on the remaining period of your contract and the wording of the agreement, you will have to pay a reasonable cancellation penalty. However, as the gymnasium did not incur significant additional costs as a result of your cancellation, you will be entitled to a discount on the remaining balance of the agreement.

Negotiate the cancellation penalty fee with the gymnasium. You may be surprised what the offer of an immediate payment as cancellation penalty can do.

And next year, rather buy running shoes, even expensive ones. They will wait patiently in your wardrobe till the following New Year’s Day …

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

The ABC of the adoption of children

A1_bSection 229 of the Children’s Act states that the purpose of the adoption procedure is to protect and nurture children in a safe, healthy environment with positive support, and to promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime.

When can a child be adopted?

In terms of Section 229 of the Children’s Act, any child can be adopted if:

  1. it is in the best interest of the child;
  2. the child is adoptable; and
  3. the requirements of Chapter 15 of the Act, which deals with adoption of children, are complied with.

A social worker determines whether a child is adoptable by establishing whether the child meets the requirements set out in Section 230(3) of the Children`s Act.

A child is adoptable when:

  1. the child is an orphan who has no guardian who is willing to adopt the child;
  2. the location or whereabouts of the natural parent or guardian of the child cannot be determined;
  3. the child is left behind (abandoned);
  4. the child’s natural parent or guardian abused or deliberately neglected the child, or allowed the child to be abused or willfully neglected;
  5. the child needs an alternative permanent displacement.

Who may adopt a child?

Section 231 of the Children’s Act states that a child may be adopted by:

  1. a husband and wife jointly;
  2. partners in a permanent domestic life partnership (cohabitation relationship), jointly;
  3. persons who share a common residence and form a permanent family unit, together;
  4. a widow, widower, divorced or unmarried person;
  5. a married person whose spouse is the parent of the child or a person whose permanent cohabiting partner is the parent of the child;
  6. the biological father of an illegitimate child;
  7. a foster parent of the child.

These individuals must meet the following requirements as set out in Section 231(2) in terms of which the adoptive parent must be:

  1. fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
  2. willing and able to undertake, exercise and maintain the parental responsibilities and rights of the child;
  3. over the age of 18 years;
  4. properly assessed by an adoption social worker for compliance with paragraphs 1 and 2.

It is important to note that a person shall not be disqualified to adopt a child because of his/her financial ability.

What is the effect of an adoption order?

ON PERSONS FORMERLY INVOLVED IN THE CHILD’S LIFE:

Unless there is a pre-adoption agreement that is accepted and confirmed by the Court, an adoption will terminate or make the following void:

  1. Parental responsibilities and rights of any person, including a parent, step-parent or cohabitation partner, that he/she had before the adoption.
  2. All claims of contact with the child by any family member or person mentioned above;
  3. All rights and responsibilities that the child had with respect to the abovementioned persons and any previous placement order regarding the child [Section 242(1) of the Children’s Act].

ON ADOPTIVE PARENTS:

The adoption order transfers full parental responsibilities and rights on behalf of the child to the adoptive parents.

  1. The child assumes the surname of the adoptive parents unless otherwise stated in the Court order.
  2. The adoptive parents are not permitted to allow any marriage or sexual intercourse between the child and any other person who would also have been prohibited from doing so before the adoption.
  3. Finally, the adoption order determines that any property rights the child may have shall not be affected by the adoption [Section 242 (1) of the Children’s Act].

An adopted child must be regarded as the “child” of the adoptive parents and the adoptive parents as the “parents” of the adopted child.

NOTE TO ATTORNEYS:
See Children’s Act No 38 of 2005

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

Can I still make a case of unfair labour practice if I have settled?

A4_b

In this article we will discuss whether, in the face of an agreement between an employer and an employee in terms of which an employee accepts a demotion to a lower position, the employee is nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.

The facts in Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[1] can be summarised as follows: The employee worked as an Administrative Manager at Builders Warehouse (Pty) Ltd. She was informed by doctors that she was very ill and would most likely have to go to hospital frequently and take various types of medication. Over the next three years her absenteeism increased significantly and her employers became concerned as she was no longer able to do her job effectively, even when she was not absent, due to the side effects of her medication. Builders Warehouse (Pty) Ltd, after having discussions with the employee, suspended her pending an investigation into her capacity to undertake the functions of an Administrative Manager, taking into account her health and performance. Builders Warehouse (Pty) Ltd held an incapacity hearing and the external Chairperson ruled that, due to the employee’s excessive and increasing absenteeism, dismissal was the appropriate sanction. The Chairperson, however, offered her a demotion instead of a dismissal. The employee accepted this demotion in writing.

After this agreement between Builders Warehouse (Pty) Ltd and the employee was concluded, she obtained legal assistance and subsequently complained to the CCMA that Builders Warehouse (Pty) Ltd had committed an unfair labour practice by demoting her.

The question here is whether, in the face of an agreement between Builders Warehouse (Pty) Ltd in terms of which the employee accepted demotion to a lower position, she was nevertheless entitled to refer an unfair labour practice dispute concerning this demotion to the CCMA.[2]

The arbitrator in the CCMA decided that because there was consent to the demotion, the CCMA did not have jurisdiction to hear the dispute. The employee then appealed to the Labour Court and once again to the Labour Appeal Court, of which the outcomes are set out below.

The Labour Court and the Labour Appeal Court looked at Section 186(2)(a) of the Labour Relations Act[3] in this regard, which states the following:

“Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits.”

The Labour Appeal Court upheld the judgement in the Labour Court and found that although a binding contract comes into existence when employers and employees settle their differences by agreement, such an agreement does not mean that the CCMA does not have jurisdiction to hear the dispute. The fact that the parties have agreed that the employee accepts demotion is not a complete defence for the employer because the ambit of this unfair labour practice is wide enough to include the implementation of an agreement to accept demotion.[4] The Labour Appeal Court confirmed that the determination of whether a demotion took place, unlike the determination of dismissal, does not require an arbitrator to determine if there was consent or not.[5]

In conclusion, it is clear from the Builders Warehouse case that, although consent is a relevant issue in regard to the merits of a dispute regarding an unfair labour practice, it is not a jurisdictional prerequisite. This means that the CCMA does have the power to hear a matter relating to a demotion even though there was consent thereto.

Bibliography

  • Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC

Labour Relations Act 66 of 1995

[1] (PA 1/14) [2015] ZALAC.

[2] (PA 1/14) [2015] ZALAC Par 12.

[3] Act 66 of 1995.

[4] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 14.

[5] Builders Warehouse (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA 1/14) [2015] ZALAC Par 13.

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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