Month: February 2018

DAMAGE TO PROPERTY

What happens when your property has been purposefully damaged, especially during an altercation? 

Uber car torching

During the road closures by meter taxis in Johannesburg on October 27 2017, two Uber drivers’ cars were set alight. A total of thirty meter taxi drivers were arrested for traffic disruption on the R21 and R24 highways of Johannesburg, and further investigations were underway as to determine how the cars were torched during the protest. With the meter taxi drivers being responsible for the flames, and assaulting an Uber passenger before leaving with her belongings. There have been ongoing violent feuds between Uber, meter taxis and taxi drivers, and in one instance, an Uber passenger was stabbed in the face, allegedly by a taxi driver. Two cars, believed to be Uber vehicles, were petrol-bombed earlier in September.

Malicious damage to property

Damaging property belonging to someone else is common – someone’s car door could fling to bump yours, the neighbour’s son may swing a cricket ball towards your kitchen window. These are mistakes which don’t normally require the assistance of authorities. Malicious damage to property is the intentional and unlawful vandalization of property or belongings of another person. As a criminal offence in South Africa, damage to property extends over to the physical harm of pets, and the vandalization of cars, furniture and other tangible items which can cause financial setbacks.

Suing for malicious damage for property follows reporting the incident as soon as possible. It is advised to keep records, such as photographs, names of witnesses, time of incident, and most importantly, financial records of repairing or replacing said property or belongings. It is important to note that in cases where property is damaged in an act of self-defence, or protecting property, the claim for malicious damage to property will not be a successful one.

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)

References:

Criminal Procedure Act 51 of 1977. (1977). [ebook] p.194. Available at: http://www.justice.gov.za/legislation/acts/1977-051.pdf [Accessed 31 Oct. 2017].

AWAITING YOUR SALARY

What are your rights as an employee if your employer has not paid you? 

Under some circumstances, your salary notification might pop in 2 days after the expected pay date due to banking with a different institution. But what happens when a few more days pass and no salary has reflected, even after you have checked with your bank? You may be tempted to wait it out and hope for the best, but as an employee, you are protected by the Basic Conditions of Employment Act (BCEA) No. 75 of 1997, provided you work for more than 24 hours a month.

Applicable law

As stated by the law, the payment periods acceptable for employers to pay their employees are daily, weekly, fortnightly or monthly. Section 32 (3)(a) of the BCEA states, “An employer must pay remuneration not later than 7 days after the completion of the period for which the remuneration is payable.” Should the employer fail to comply with this, the employee may then request, by letter of demand, an explanation from the employer. This letter may also be kept as proof for the employee should the matter require legal intervention.

Where to go

If the employee earns less that the threshold of R149 736.00 per year, they may approach the Department of Labour to lay a complaint of their non-payment. After filing the complaint, the Department of Labour will send an inspector to the employer to investigate the matter further, and an instruction of payment with an expected payment date will then be issued. Upon failing to comply with this instruction after various steps of intervention have been taken, then it will lead to some of the employer’s assets being sold to raise the outstanding monies.

Next steps if you have not received your salary on the expected pay date

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)

References:

Basic Conditions of Employment Act. (2017). [ebook] Republic of South Africa, pp.15-16. Available at: http://www.labour.gov.za/DOL/downloads/legislation/acts/basic-conditions-of-employment/Act%20-%20Basic%20Conditions%20of%20Employment.pdf [Accessed 30 Oct. 2017].

Retrenchmentassist.co.za. (2017). Employer’s Failure To Pay Your Salary. [online] Available at: http://www.retrenchmentassist.co.za/index.php/ra-newsletters/100-employers-failure-to-pay-your-salary [Accessed 30 Oct. 2017].

WHEN PROPERTY AND HERITAGE DISAGREE

The provincial heritage resources authority (PHRA) granted a permit in terms of Section 34 of the National Heritage Resources Act 25 of 1999 for the demolition of a structure that was older than 60 years and situated on a property with no formal heritage status. By doing so, conditions were imposed controlling future development on the property and it was held that such conditions were lawfully imposed.

Gees v the Provincial Minister of Cultural Affairs and Sport

The Supreme Court of Appeal (SCA) recently dismissed an appeal against a judgment of the Western Cape High Court. In so doing the SCA held that the large concentration of art deco buildings spanning Davenport Road, Vredehoek, Cape Town, forms part of the national estate and is worthy of protection as a heritage resource.

Therefore, the SCA held that Heritage Western Cape, in granting a permit for the demolition of the appellant’s 60-year-old block of flats, was justified in imposing conditions controlling future development on the property.

It is true that the conditions imposed in the demolition permit amount to a curtailment of the appellant’s entitlement to deal with his property as he sees fit, and may therefore to a certain extent be regarded as a deprivation of property. However, it is widely recognised that in our present constitutional democracy an increased emphasis has been placed upon the characteristic of ownership which requires that entitlements must be exercised in accordance with the social function of law in the interest of the community.

Conclusion

AJ van der Walt and GJ Pienaar in “Introduction to the Law of Property” 7ed (2016), put it as follows:

‘. . . the inherent responsibility of the owner towards the community in the exercise of his entitlements is emphasised. The balance between the protection of ownership and the exercise of entitlements of the owner regarding third parties, on the one hand, and the obligations of the owner to the community, on the other hand, must be maintained throughout. This might, in certain circumstances, even mean that an owner’s entitlements could be limited or infringed upon in the interest of the community. In such cases the infringement must always be reasonable and equitable [not arbitrary].’

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)

References:

Gees v The Provincial Minister of Cultural Affairs and Sport (974/2015) [2015] ZASCA 136 (29 September 2016)

SPANKING KIDS NOW ILLEGAL

The South Gauteng High Court ruled that the common law defence of reasonable chastisement is not in line with the Constitution and no longer applies in our law. This means disciplining your child in the form of a spanking is no longer considered legal within South Africa.

How did it come to this?

It has always been considered a crime of assault to hit a child, however, if a parent was charged, they would be able to raise a special defence which said that if the chastisement, or discipline, was reasonable they would not be found guilty.

The special defence of chastisement has been removed by the Court, which was to bring the common law in line with the Constitution. This followed an appeal by a father who had been found guilty of assault because he beat his 13-year-old son. The way in which he beat his son was deemed to exceed the bounds of reasonable chastisement.

The Court said that it wanted to guide and support parents in finding more positive and effective ways of disciplining children. The Minister of Social Development, Bathabilie Dlamini, also agreed that the defence of reasonable chastisement is unconstitutional. The Court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

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)

References:

YG v S (A263/2016) [2017] ZAGPJHC 290 (19 October 2017)

“It’s now illegal to spank your child in SA”. https://www.enca.com/south-africa/it-is-now-illegal-to-spank-your-child-in-sa

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