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THE POSSIBILITY OF TERMINATING A SURROGATE AGREEMENT

Partial surrogacy agreements allow for the surrogate mother to terminate the agreement within 60 days after giving birth to the child. This article looks at the different outcomes surrogacy agreements may have.  

I entered into a gestational surrogacy agreement with a married couple. I am currently 8 months pregnant and have formed a bond with the baby. Will I be able to terminate the surrogacy agreement after the birth of the baby? 

The Children’s Act 38 of 2005 (“the Act”) makes provision for a valid surrogacy agreement. In terms of the Act, a surrogate agreement is concluded when ‘the commissioning parent(s) are not able to give birth to a child and the condition is permanent or irreversible’.

Prior to the introduction of modern technology, specifically that of reproductive techniques, ‘traditional or partial surrogacy’ was the only method available to women who had no uterus or abnormalities of the uterus to have children. Recently, artificial insemination is used to inseminate surrogate hosts in order for the surrogate mother to carry the child. The Act governs the artificial fertilisation of a surrogate mother.

There are two types of surrogacy agreements, namely partial surrogacy and full (gestational) surrogacy. Partial surrogacy is the method used in the case where the husband’s gamete together with the gamete of the surrogate mother, is inseminated into the internal reproductive organs of the surrogate mother. As a result, the child is genetically linked to the father and surrogate mother. Full surrogacy refers to the instance where the gametes of both the commissioning parents are inseminated into the internal reproductive organs of the surrogate mother. In essence, the surrogate mother has no genetic link to the child.

A surrogate to a partial surrogacy agreement has 60 days during which she can terminate the agreement after the birth of the child. However, in terms of gestational surrogacy agreement, the parties to the agreement are not given the option to terminate the agreement. Additionally, in this case, the surrogate mother cannot refuse to relinquish the child to the commissioning parents.

The law of contract in South Africa revolves around two main principles, namely pacta sunt servanda (Latin for “agreements must be kept”) and the freedom to contract.  These principles imply that the obligations arising out of the agreement must be enforced. The reality of these two principles is that they do not exist in isolation, as they are subject to legislative and judicial decisions. Despite meeting the ordinary requirements of a contract, a surrogacy agreement is a unique contract as there are conflicting human rights and interests involved when a dispute arises out of such an agreement.

Forcing a surrogate mother who is not genetically linked to the child to hand the child over to the commissioning parents when she refuses to do so has been described as a sacrifice of a woman’s reproductive autonomy to the principle of pacta sunt servanda. 

The fundamental rights and values of the Constitution cannot be ignored in surrogacy agreements as Section 12(2)(a) – (b) of the Constitution clearly provides “everyone the right to bodily and psychological integrity, which includes the right to make decisions [regarding] reproduction [and] to security in and the control over the body”.

For a surrogacy agreement to be valid it must meet the requirements set in chapter 19 of the Act. When such a surrogacy agreement is invalid, the common law position will apply insofar as the woman who gave birth to the child would be regarded as the legal mother of the child whether or not such a child has a genetic relation with her.

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:

  • Brisley v Drotsky 2002 (4) SA 1 (SCA).
  • Lewis SV ‘The Constitutional and Contractual Implications of the Application of Chapter 19 of the Children’s Act 38 of 2005’ available at uwc.ac.za/xmlui/bitstream/handle/11394/1828/Lewis_LLM_2011.pdf?sequence=1 (accessed 20 April 2017)
  • http://www.casebriefs.com/blog/law/health-law/health-law-keyed-to furrow/reproduction-and-birth/johnson-v-calvert/2/
  • Children’s Act 38 of 2005
  • Constitution of the Republic of South Africa, 1996.
  • Brinsden PR ‘Gestational Surrogacy’ 2003 (9) 5 European Society of Human Reproduction and Embryology 483 – 491

CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.

Where the trustees have reasonably, after following due process and considering all relevant factors, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme.

This is according to the Prescribed conduct rule 1 in Annexure 9 of the Sectional Titles Regulations which deals with the keeping of pets, including reptiles or birds.

It states:

  1. “An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.
  2. When granting such approval, the trustees may prescribe any reasonable condition.”

The phrases, “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony amongst a community living side by side in a sectional title development.

These regulations exist to protect the pet owner from unreasonably strict rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment. This means that both parties need to consider each other’s needs.

This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units; and which conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?

For this reason, owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees. However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable and if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.

The trustees must furthermore, base their decision on the facts and circumstances of the particular case. The decision to either grant or refuse consent should be recorded in the minutes of the trustee’s meeting, giving reasons that illustrate they have applied their minds to the particular set of facts.

An example of a court case which arose from a dispute regarding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of each particular case.

A further extract from this case pointed out that trustees are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and have failed to apply their minds when they refused the Applicant permission to keep a small dog.

The question of the reasonableness of the actions of the trustees, in granting or withholding permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme.

It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a guide dog owned by a blind or partially sighted owner, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.

The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met. The trustees can withdraw permission if it is reasonable to do so. Examples include if the pet is causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.

Where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order, if – for example – there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement the necessary legal steps to have the dogs removed.

Careful consideration and the application of the principles as set out in the rules of the scheme and the above-mentioned regulations will lead not only to peaceful co-existence, but also healthy growth in property values for the developments implementing such approach. A harmonious board of trustees results in a happy community, which in turn will ensure a good name for any development.

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:

TRUST LITIGATION – WHO CAN INSTITUTE A CLAIM AND WHICH COURT HAS JURISDICTION?

This article deals with the questions of who can institute litigation on behalf of a trust, as well as with the question of how jurisdiction is determined with regards to trusts.

Who can institute a claim?

A trust is not a legal person and cannot litigate in its own name. The trustees play a vital role in any litigation in which a trust might be involved. There are three overriding principles regarding trust administration:

  1. The trustees are obliged to give effect to the provisions of the trust deed.
  2. The trustees must perform their duties with the necessary “care, diligence and skill which can be expected of a person who manages the affairs of another”.
  3. Any person acting as a trustee must exercise discretion, where allowed, with the necessary objectivity and independence.

Section 6(1) of the Trust Property Control Act (the Act) determines the following: “any person whose appointment as trustee in terms of a trust instrument, section 7 or a court order comes into force after the commencement of the Act, shall act in that capacity only if authorised in writing by the Master”. In Watt v Sea Plant Products Bpk, Judge Conradie interpreted this section to mean that a trustee may not, prior to authorisation, acquire rights for, or contractually incur liabilities on behalf of the trust”. Thus, a trustee can only contract and institute legal proceedings in his/her capacity as trustee once a letter of authority has been issued by the Master of the High Court.

In Nieuwoudt v Vrystaat Mielies (Edms) Bpk), an agreement was held to be invalid and unenforceable because the trustees had not acted jointly nor reached a unanimous decision. The conclusion to be drawn from this is that trustees must act jointly when entering into contracts or when instituting litigation.

A trustee has a duty to vindicate trust property and to collect due debts. This duty goes hand in hand with the duty to conserve trust property and ensures that the trustee is in control of the property which forms part of the trust fund. A trustee further has locus standi to defend actions instituted against the trustee to ensure that the trust property is conserved.

Should all the trustees be joined in an action to enforce a right of the trust?

Judge Cameron held in the Goolam Ally Family Trust case that all the trustees must be joined in suing and all must be sued. Therefore, all the trustees will be joined in their official capacity when instituting legal proceedings.

In Khabola NO v Ralithabo NO, the court quoted the general rule regarding locus standi as follows: Any person who has a direct or substantial interest in the matter has the required locus standi to institute legal proceedings. The learned judge found that the underlying contractual relationship between trustees could be equated to a partnership.

Jurisdiction:

For jurisdictional purposes, a partnership “resides” at the place where its principal place of business is situated, and if the principle set out in abovementioned case is followed – a trust also “resides” where its principal place of business is situated.

In Bonugli v The Standard Bank of South Africa Limited, the court referred to section 5 of the Act  which determines that a person whose appointment as trustee comes into effect after the commencement of this act, shall furnish the Master with an address for the service upon him of notices and process and shall, in case of change of address, within 14 days notify the Master by registered post of the new address. The cause of action arose in Johannesburg, and one of the defendants (a trustee in his representative capacity) was resident in Australia. The address which was used in the summons was the address given to the Master in terms of section 5 of the Act. A special plea with regards to lack of jurisdiction was raised, but the Cape Town High Court found that it had the necessary jurisdiction to hear the matter.

There are considerable differences between a partnership and a trust, but with regards to jurisdiction the general principles applicable to a partnership can also be applied to a trust – namely considerations of convenience and common sense for its conclusion to entertain a claim. The Cape Town High Court had jurisdiction to hear the Bonugli matter because the first defendant was resident within its jurisdiction, and because the address listed in terms of section 5 of the Act was within the jurisdiction. Considerations of common sense and convenience also required that the court should adjudicate the issue between the plaintiff and all the defendants.  It would have been impractical to institute a claim based on the same set of facts in two different courts, because the trustees were resident in different courts’ jurisdictions.

There remains some uncertainty regarding which court should have jurisdiction to hear a claim instituted by a trust or a claim against a trust. There appears to be three possibilities in this regard: Firstly, if the Bonugli judgment was followed, the residency of one trustee should be sufficient to establish jurisdiction. Secondly, the address provided in terms of Section 5 of the Act could be used to establish jurisdiction. Thirdly, the court where the trust’s principle place of business is situated could have jurisdiction. Hopefully the position regarding which court has jurisdiction to hear claims instituted by a trust or against a trust will be properly aired in the courts soon, to provide more certainty regarding this aspect.

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:

Books:

  • Lexisnexis Trust Law and Practice, P A Olivier, S Strydom, GPJ van den Berg, October 2017
  • Civil Procedure: A Practical Guide, Petè, Hulme, Du Plessis, Palmer, Sibanda, Oxford University Press.

Acts:

  • Trust Property Control Act 57 of 1988

Cases:

  • Watt v Sea Plant Products Bpk (1998) 4 All SA 109 (C)
  • Nieuwoudt v Vrystaat Mielies (Edms) Bpk)
  • Goolam Ally Family Trust t/a Textile, Curtaining and Trimming v Textile, Curtaining and Trimming (Pty) Ltd 1989 (4) SA 985 (C) at 988D-E
  • Khabola NO v Ralithabo NO (5512/2010) (2011) ZAFSHC 62 (24 March 2011)
  • Bonugli v The Standard Bank of South Africa Limited 266/2011) (2012) ZASCA 48 (30 March 2012)

CAN I BRING MY ATTORNEY WITH TO AN INTERNAL DISCIPLINARY HEARING?

According to item 4 of the Code of Good Practice (“the code”), the definition of dismissal contained in Schedule 8 of the Labour Relations Act (“LRA”) states that, when an employee is charged with misconduct, “[t]he employee should be allowed… the assistance of a trade union representative or fellow employee”. However, what happens in the instance when you do not belong to a trade union, or alternatively, a fellow employee is unwilling to assist you?

An employee does not automatically have the right to a legal representative during a disciplinary hearing held at their workplace. However, the employee may bring a formal application prior to the hearing for the presiding officer to consider allowing an external representative to assist the employee at the disciplinary hearing.  When exercising such discretion, the presiding officer should take certain factors into account, and the decision in respect of such an application is final, although the employee can still refer a dispute to the CCMA or Bargaining Council for procedural unfairness.

These are the factors to be considered:

  • The company policy;
  • The serious nature and complexity of the matter (whether it is in respect of a point of law or the merits of the matter);
  • The potential severity of the consequences of an adverse finding;
  • The potential adverse effects on both parties, if legal representation is allowed in comparison to when it is not allowed.

However, what happens when the employer blatantly refuses the application, or the company policy prohibits the use of an external legal representative during a disciplinary hearing?

In the case of MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani, the Supreme Court of Appeal held that even when the employer’s disciplinary policy prohibits the use of an external representative, it may be allowed in certain circumstances. The court held that the employer’s policy must be viewed as a guideline, which may be departed from under appropriate circumstances. Therefore, ultimately leaving it to the presiding officers to decide.

In Molope v Mbha and Others, the Labour Court held that even though the dismissal of an employee who was charged with the unauthorised use of funds was substantively fair, the dismissal was procedurally unfair. The employee, prior to the disciplinary hearing, requested a postponement of the said hearing, in order to obtain an external representative as a fellow employee who had agreed to assist the accused employee decided to no longer assist shorty before the hearing.  The employer however refused the postponement.

The decision of the presiding officer on such application is final. However, should the employee wish to appeal against this decision, the employee still has the option of referring the dispute to the CCMA or Bargaining Council for procedural unfairness upon the completion of the disciplinary process.

Therefore, should employers not disclose the option to use an external representative, via their policies or the notice of disciplinary hearing, it does not preclude employees from seeking the assistance of such representative. In the light of the above, it must still be kept in mind that it is not illegal for an employer to have a policy prohibiting assistance from external representatives. However, should the employee wish to make use of external legal representation, the request must be duly considered based on the aforementioned factors, as opposed to a mere outright denial of the request.

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:

MEC: Department of Finance, Economic Affairs and Tourism: Northern Province vs Schoon Godwilly Mahumani 2005 2 All SA 479 (SCA)

Ivan Israelstam “Disciplinary Hearings: When should external counsel be permitted?” – http://www.labourguide.co.za/most-recent/1295-lawyers-may-be-allowed-at-disciplinary-hearings

Molope v Mbha and Others (JR1950/02) [2005] ZALC 48 (1 February 2005)

The Right to representation – https://www.labourguide.co.za/discipline-dismissal/673-the-right-to-representation

HOW DOES THE PROCESS TO CLAIM UNDER COIDA WORK?

When dealing work related accidents, there still seems to be a lot of uncertainty relating to the correct reporting and recording procedures of work related injuries. The Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993 (“COIDA”) is the governing Act in South Africa that deals with occupational injuries and diseases.

The aim of COIDA is to provide for compensation in the case of disablement caused by occupational injuries or diseases, sustained or contracted by employees in the course of their employment, or death resulting from such injuries or disease; and to provide for matters connected therewith. COIDA prevents employees covered by the Act from suing their employers for damages in terms of common law.

Any employer with one or more employees must register with the Compensation Fund and pay annual assessment fees. Claims for employees employed in the mining and building industries must be referred to the relevant mutual associations. Claims by employees working for individually liable employers such as the state, parliament, the provincial authorities and local authorities – which have been exempted from making payments to the compensation fund – must be referred to the employer. The following steps, as set out below, should be followed when reporting to and claiming from the Compensation Fund in terms of COIDA:

  1. The accident must be reported when an employee injures himself or herself, out of and in the course of employment resulting in a personal injury for which medical treatment is required.

Written or verbal notice of an injury at work is to be given to the employer before the completion of the shift or end of the workday. Good practice on the side of the employer will be to make a list of all witnesses of the accident for the further investigation of the incident. An official form needs to be completed – known as the “W.Cl 2 Form – Notice of Accident and Claim for Compensation”. This form should be completed whenever an employee has an accident out of or in the course of employment leading to personal injury, medical treatment or death. It is the employer’s duty to submit the W.Cl 2 form, within a period of 7 days after the accident to the Compensation Commissioner.

After the completion of the form, the employer must send the form with a certified copy of the employees identity document and the first medical report (“W.Cl 4 form”) to Compensation Commissioner. A medical practitioner should complete the W.Cl 4 form, stating the seriousness of the injury, as well as the time period the employee is likely to be absent from work. Once completed, the medical practitioner sends it to the employer who forwards same to the Commissioner. Employees are not responsible for the payment of medical costs in this regard, however, if an employee requests a second medical practitioner’s opinion, he/she will be liable for the payment of medical costs.

  1. After the Compensation Commissioner receives the abovementioned documents, he/she will then register the claim and forward a postcard (“W.Cl.55”) to the employer. A claim number is provided on the postcard and this number should be used for all paperwork relating to a claim. When the first doctor’s report has been submitted with the accident report, the Compensation Commissioner will consider the claim and make a decision.

After the Compensation Commissioner has considered the claim a postcard (“W.Cl.56”) will be sent to the employer. The W.Cl.56 postcard, will only be used by the Compensation Commissioner when liability is accepted for payment of the claim. Where a W.Cl.56 is not issued, it usually indicates that the Compensation Commissioner has not accepted liability for any payment – in this instance the employee may have a claim against the employer. If the employee, however, disagrees with the decision of the Compensation Commissioner, an appeal may be lodged by the employee within 90 days by submitting form “W929” to the Compensation Commissioners’ office.

  1. If the work-related injury continues for a long time and where the employee is prolonged absent from work, the medical practitioner must send a progress medical report (“W.Cl 5”) to the Compensation Commissioner. The progress report should be submitted monthly until the employee’s condition is fully stabilised. This informs the Compensation Commissioner of the time period the employee is absent work.
  1. Once the medical practitioner handling the case is satisfied that the employee is fit to return to work, the practitioner will issue a final report that the employee is fit to return to work; or that the employee’s injury resulted in him/her being permanently disabled.  The medical practitioner must forward this report to the employer who will sends it to the Compensation Commissioner.
  1. When the employee resumes work, a resumption report (“W.Cl 6”) must be completed and submitted to the Compensation Commissioner. Only after every one of these forms has been submitted to the Compensation Commissioner, will payment be made of all of the medical and related disbursements, where after the case will be closed.

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:

The Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993

The South African Labour Guide

THE IMPACT OF THE CPA ON FRANCHISE AGREEMENTS

With franchises becoming a common phenomenon worldwide and franchisors, traditionally, benefitting from a strong bargaining position when negotiating franchise agreements, regulation of the industry has become inevitable and has South Africa’s legislature initiated this regulation through the Consumer Protection Act No.68 of 2008 (“CPA”), which was signed into law on 24 April 2011.

The CPA has forcibly changed the way franchises operate, in that franchisees are deemed to be consumers in terms of the CPA and now have a whole variety of consumer rights. The CPA and its detailed regulations, regulate the whole franchising process, which includes the “franchisor-franchisee relationship” and more importantly, the franchise agreement itself, which must contain prescribed clauses and information in order to be CPA compliant.

A fundamental change affecting the franchise industry is that every franchise agreement must now contain a cancellation clause, failure of which the agreement may be declared void. In terms of section 7(2) of the CPA, a franschisee may cancel a franchise agreement, without costs or penalty, within 10 business days after signing such agreement. Under this provision, if the franchisee excercises his right to cancel the agreement, the franchisor has no remedy to recover from the franchisee any loss suffered as a result of the cancellation.

In addition to the aforesaid, a franchisor must provide a potential franchisee with a disclosure document, in terms of Regulation 3 of the CPA, at least 14 days before the franchisee signs the franchise agreement. This document is aimed at giving the franchisee all the information required in order to make an informed decision. The document must, as a minimum, contain the following:

  • the number of individual outlets franchised by the franchisor;
  • the growth of the franchisor’s turover, net profit and the number of individual outlets, if any, franchised by the franchisor for the financial year prior to the date on which the prospective franchisee receives a copy of the disclosure document;
  • a statement confirming that there has been no significant or material changes in the company’s or franchisor’s financial position since the date of the last accounting officer, auditor’s certficate or certificate by a similar reviewer of the company or franchisor, that the company or franchisor has reasonable grounds to believe that it will be able to pay its debts as and when they fall due; and
  • written projections of potential sales, income, gross or net profits or other financial projections for the franchised business.

Furthermore, the CPA governs the right of a franchisee to select suppliers in terms of section 13 of the CPA. The only platform in which the franchisor can now dictate supply are those goods which are branded or related to the branded products or franchise service.

The CPA also prohibits false or misleading representations concerning the performance, characteristics and benefits of the business, which is regarded as unfair, unreasonable and unjust contract terms. Franchise agreements must also contain provisions that prevent unreasonable fees, prices or other consideration and conduct that is not reasonably necessary for the protection of the legitimate business interests to the franchisor, franchisee or franschise system.

Sections 7 and 51 read together with Regulation 2 of the CPA, very specifically mark the parameters of clauses that must be included, as well as some that may not be included, in a franchise agreement.

Current and future franchise agreements will be largely impacted by the CPA and therefore business owners must acquaint themselves well with the ambit and workings of the CPA before entering into a franchise agreement. If you are a franchisee, it will benefit you greatly to make sure that you understand your rights and that you are not coerced into entering into a franchise agreement.

The practical effects of non-compliance with the CPA when negotiating and concluding franchise agreements have become apparent in rulings and findings by the National Consumer Tribunal, Consumer Court and National Consumer Commission, which do not tolerate any non-compliance with the strict provisions of the CPA. Readers are thus advised to obtain legal counsel before entering into a franchise agreement.

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:

Consumer Protection Act. No 68 of 2008

Naudé T & Eiselen S, Commentary on the Consumer Protection Act, Juta, 2014

WHAT IS CONSIDERED SEXUAL HARASSMENT IN THE WORKPLACE?

Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. According to the Commission for Conciliation, Mediation and Arbitration (CCMA), sexual attention becomes sexual harassment if:

    1. The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or
    2. The recipient has made it clear that the behaviour is considered offensive; and/or
    3. The perpetrator should have known that the behaviour is regarded as unacceptable.

Forms of sexual harassment

It’s important to understand what constitutes sexual harassment. Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the following examples:

    1. Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.
    2. Verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling directed at a person or group of persons.
    3. Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects.
    4. Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.

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:

The Commission for Conciliation, Mediation and Arbitration, Code of Good Practice on Sexual Harassment

WHEN DOES PRESCRIPTION OF A DEBT START?

Debt does not last forever, after a period of time it prescribes and becomes invalid. Prescribed debt can be explained as old debt that has not been acknowledged over a period of three years. This means that a debt prescribes if:

  • You have not acknowledged the debt in the past three consecutive years, either in writing or verbally.
  • You have not made a payment promised to make a payment to the outstanding debt amount.
  • You have not been summoned to make a payment by a creditor for the debt within the past three consecutive years. 

Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited

On 5 September 2017, the Constitutional Court handed down a judgment in an appeal against the judgment and order of the Supreme Court of Appeal (SCA) against Trinity Asset Management (Pty) Ltd (Trinity). The SCA ruled that Trinity’s claim for repayment of a debt of some R4.55 million against Grindstone Investments 132 (Pty) Ltd (Grindstone) was unenforceable because it had prescribed.

The parties entered into a written loan agreement, effective from 1 September 2007, in terms of which Grindstone borrowed a capital amount of R3 050 000 (loan capital) from Trinity. Clause 2.3 of the loan agreement provided that the loan capital was due and repayable to the applicant within 30 days from the date of delivery of Trinity’s written demand.

The majority judgment found that, on a holistic reading of the loan agreement, the parties did not intend to delay when the debt would become due or when prescription would begin to run. The parties’ language in the contract did not signify an intention to delay. The parties simply meant to allow Grindstone 30 days to repay the debt once Trinity had issued demand, not to postpone the due date of the debt to an indeterminate future date. The debt thus became due, and prescription began to run, immediately on conclusion of the contract.

Grindstone therefore raised a valid prescription defence, and the appeal was dismissed.

Conclusion

If you are uncertain about a debt amount or require assistance in this regard, then please contact your financial advisor, who will assist you with taking the next steps.

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:

Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited (CCCT248/16) [2017] ZACC 32 (5 September 2017)

What is Prescribed Debt?

TITLE DEEDS WHEN BUYING OR SELLING PROPERTY

If you’re planning to buy a new property, you’ll need to get the title deed transferred into your name to prove that you’re the owner of the property. You’ll need the assistance of a lawyer specialising in property transfers (also known as a conveyancer) to help you transfer the title deed into your name.

You’ll only become the owner of the property when the Registrar of Deeds signs the transfer. After it’s been signed, a copy of the title deed is kept at the Deeds Office closest to you.

How long does it take? 

A search may take 30 to 60 minutes. In some of the larger offices, the copy of a deed is posted or it must be collected after a certain period of time.

To obtain a copy of a deed or document from a deeds registry, you must:

  • Go to any deeds office (deeds registries may not give out information acting on a letter or a telephone call).
  • Go to the information desk, where an official will help you complete a prescribed form and explain the procedure.
  • Request a data typist to do a search on the property, pay the required fee at the cashier’s office and take the receipt back to the official at the information desk.
  • The receipt number will be allocated to your copy of title.

Fortunately, a conveyancer will help you with the process so that you don’t have to worry about all the paperwork yourself. You should contact your legal advisor to find out more.

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:

Western Cape Government, Title Deeds: Proof of Property Ownership, https://www.westerncape.gov.za

The Department of Rural Development and Land Reform, http://www.dla.gov.za/

HAVING TO WORK AFTER HOURS: IS IT LEGAL?

Many industries may sometimes require their employees to work irregular hours. Employers within these industries, also known as “24/7″ industries, have somehow developed the notion that they are “different” from any other industries.

The Basic Conditions of Employment Act, and The Code of Good Practice, explain the criteria for this important aspect of employment. It is vitally important that employers are familiar with the Act and know what its implications are.

What does the Act say?

According to the Act, no employee may work more than 45 hours per week during normal work times. Furthermore, no employee may work more than 10 hours per week overtime. This applies irrespective of what industry you are in, because the act does not differentiate between different types of industries or employment environments.

The only document that may bring about a different condition would be a sectoral determination, or perhaps a Main agreement or collective agreement.

  • The idea of a “24/7” industry is irrelevant – the law remains the same. Furthermore, the Act provides for a daily rest period of 12 consecutive hours between finishing work and recommencing work.
  • Employers who allow “days off” to compensate for additional hours worked must realise that these “days off” cannot be taken from the employee’s annual leave.

Working on the weekend

If the employee’s normal shift falls on a Sunday, then he/she must be paid 1,5 times the normal wage rate for that work, and if the normal shift does not fall on a Sunday, but they are required to work that Sunday, then they must receive double the normal wage rate for the day.

Conclusion

It is clear that it is unlawful for an employer to force an employee to work a full shift of 9 hours, for example, and then have them be on “standby” for the next 12 hours – to do so would violate the condition regarding the daily rest period.

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:

The South African Labour Guide, http://www.labourguide.co.za/conditions-of-employment/763-working-hours-and-overtime

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