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Month: March 2020 (page 1 of 2)

Is cybercrime punishable in South Africa

March 16, 2020 / / Comments Off on Is cybercrime punishable in South Africa

The prosecution of cybercrime in South Africa is regulated by the Electronic Communications and Transactions Act 25 of 2002 (“the ECTA”) and the Cybercrimes and Cybersecurity and Related Matters Bill (“the Bill”). Alongside these pieces of legislation exists the common law, as well as the Constitution of the Republic of South Africa, 1996 (“the Constitution”). The ECTA and the Bill are to be read in conjunction with the common law (where it is applicable) and the Constitution in order to obtain a holistic understanding of the improvement of cybersecurity and the prosecution of cybercrimes in South Africa. It should be noted that where the ECTA fails to impose criminal sanctions on cybercrime, the common law sanctions will apply.

The ECTA 

The ineffectiveness of the common law to deal with and combat cybercrime led to the promulgation of the ECTA in 2002. The ECTA has as its objective the facilitation and regulation of electronic communications and transactions.

The ECTA deals with cybercrime in Chapter XIII, in which several new cybercrime-related offences were created. These new offences include obtaining unauthorised access to, interception of or interference with data; computer-related extortion, fraud and forgery; and attempt, and aiding and abetting regarding the aforementioned offences.

The ECTA also created the “cyber inspector” who may “enter any premises or access any information that has a bearing on an investigation” into a cybercrime.

The arrival of the ECTA was applauded, as it was an attempt made by the South African legislature to address and improve cybersecurity and to create and prosecute new cybercrimes. However, the ECTA received some criticism and it is generally accepted that there is still room for improvement.

It is argued that the penalties for engaging in cybercrime, as stipulated in section 89 of the ECTA, are not severe enough. This is because it is argued, a person convicted of certain offences in the ECTA can, at most, be liable for a fine or be imprisoned for a period of one year.

For other offences in the ECTA, a person can be liable for a fine or be imprisoned for, at the most, a period not exceeding five years. It is argued that these punishments are not enough of a deterrent to prevent the commission of cybercrimes and that the ECTA should be amended to include harsher penalties. It is also argued that the police, the private sector and academia should be involved in the fight against cybercrime. As noted above, the ECTA created cyber inspectors, though none have been appointed to date, and therefore no actors are currently exercising their power to conduct investigations into cybercrimes.

The Bill 

The Bill was promulgated to address the shortcomings of the ECTA, and it is apparent that the Bill has in fact done so.

First, the Bill imposes a fine with a minimum amount of 5 million Rand and a maximum amount of 10 million Rand. The Bill also prescribes a minimum period of imprisonment of five years and a maximum period of imprisonment of 10 years. Moreover, the Bill makes provision for the combined penalty of a fine as well as imprisonment.

Secondly, the Bill addresses the lack of involvement of police, the private sector and academia in the fight against cybercrime in the ECTA by creating several structures to assist in the eradication of cybercrime. These structures include a Cyber Response Committee and a Cybersecurity Centre.

These penalties are considerably stricter than those of the ECTA, and it is believed that the Bill will have a greater deterrent effect on the commission of cybercrimes.

Upon examination of the ECTA and the Bill, as well as the amount of criticism that the respective pieces of legislation have attracted, it becomes apparent that the prosecution of cybercrime in South Africa is not, and will not be, without challenges. This is because these pieces of legislation are grappling simultaneously with an all-new type of criminal activity and the advanced phenomenon called cyberspace. Developing legislation that effectively prosecutes cybercrime will, therefore, take legislatures and experts on cybercrime some time to perfect.

Reference List:

  • Cassim F ‘Addressing the growing spectre of cybercrime in Africa: evaluating measures adopted by South Africa and other regional role players’ 44 CILSA (2011) 123 at 127.
  • Sections 86 to 88 of the ECTA.
  • Section 82(1) of the ECTA.
  • Sections 37(3), 40(2), 58(2), 82(2), 86(1), (2), (3) of the ECTA.
  • Sections 86(4), (5) and section 87 of the ECTA.
  • Van der Merwe D et al Information Communications and Technology Law 2 ed (2016) at 80-81.
  • Section 14 of the Bill.
  • Schultz CB ‘Cybercrime: An Analysis of Current Legislation in South Africa’ (2016) at 35.
  • Chapter 10 of the Bill.

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)

Identification parades: Fair or unfair?

March 16, 2020 / / Comments Off on Identification parades: Fair or unfair?

The cautionary approach is effectively summed up in the case of S v Mthetwa where the presiding officer noted that the honesty of the identifying witness should be considered in isolation. The identification of a witness depends on the lighting, visibility, eyesight, proximity of the witness, the extent of his prior knowledge of the accused etc. The list mentioned is by no means exhaustive and each factor cannot be weighed in isolation but must be considered in light of the totality of the evidence available.

The power to hold parades is specifically vested in SAPS officials. Section 37(1)(b) of the Criminal Procedure Act 51 of 1977 provides that any SAPS official may make any person alleged to have been involved in a crime available, or cause such person to be made available, for identification in such condition, position or apparel as the SAPS official may determine. The Act and section provide the only legislative basis for the conducting of a parade. A suspect who has been identified to take part in a parade may not refuse such participation.

Certain rules have been developed to ensure the fairness of an identification parade. These rules are by no means requirements for the admissibility of conducted identification parades, it merely serves as guidelines to ensure the enhancing and reinforcing of evidential cogency of the parade.

Rule 1 is that the proceedings of the parade should, at the time of the parade, be recorded by the SAPS official officiating the parade. The record should preferably be kept on a Form SAP 329. This rule is of vital importance in ensuring that an accurate account of the event can later be furnished to the court, as human memory cannot retain all the detailed information which would be required at a subsequent trial. Rule 2 is that the SAPS official in charge of the parade should not be the investigating officer in the same case. This Rule minimises the possibility of collusion between the investigating officer and the witness pointing out the suspect in the identification parade.

Rule 3 is that suspects participating in the identification parade should be informed of the purpose of the parade and the allegation against them and should be given an opportunity to obtain a legal representative that will be present at the parade. Rule 5 stipulates that a parade should consist of at least eight persons, while a greater number of participants is more desirable. The greater the number of participants in the parade, the greater the evidentiary value of the parade. This affords greater protection to the innocent. Rule 8 states that suspects and individuals in the parade should be of the same build, height, age, appearance and should have more or less the same occupation and be similarly dressed. Rule 9 states that it is preferable that at least one photograph should be taken of all the persons at the parade, depicting them as they appeared in the line-up and standing next to each other.

Rule 10 provides that the official in charge of the parade should inform the suspect that he/she may initially take up any position and change his/her position before any other identifying witness is called. This rule also serves to guard against collusion between witnesses. Rule 11 provides that a participating suspect should be asked whether he/she has any requests to make, upon which Rule 12 then follows, providing that the official should accede to any reasonable requests. Rule 13 states that the witnesses should be kept separate and not be allowed to discuss the case prior to the identification while Rule 14 seeks to prevent witnesses from seeing any member of the parade before they are brought in for purposes of identification. Rule 17 provides that the official in charge should inform each identifying witness that the person whom the witness saw may or may not be on the parade and if he/she is unable to provide positive identification,  he/she should refrain from doing so. Rule 18 states that the officiating official should request the witnesses to identify suspects by touching their shoulders and that such acts shall be photographed.

The above-mentioned Rules should not be considered as a rigid set of requirements but rather a guideline to ensure that fairness prevails in all conducted parades. Non-compliance with these Rules will not affect the admissibility of the parade but rather have a bearing on how much weight the parade and the witness’s identification carries.

Reference List:

  • S v Mthethwa 1972 (3) SA 766 (A).
  • S v Tanatu (ECJ 2004/036) [2004] ZAECHC 35 (15 October 2004).
  • The Criminal Procedure Act 51 of 1977.

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)

New laws for parental leave

March 16, 2020 / / Comments Off on New laws for parental leave

In a welcoming and long-awaited move, President Cyril Ramaphosa signed the Amendment of the Labour Law Act into law on 28 November 2018, giving parents, particularly fathers of newborn children, adoptive parents and commissioning parents, the right to ten consecutive days parental leave. This new law took effect on 1 January 2020.

This new law is seen as a progressive move towards recognising biological fathers, same sex parents, transgender parents, adoptive parents and even surrogates. It further acknowledges the fact that the gap between one or two parents being employed in a household is getting narrower and narrower. The entitlement to parental leave also fosters family bonding between the parents and a child, which is of utmost importance.

This amendment to the Basic Employment Condition Act, 1997 is the insertion of clauses 25A, 25B and 25C, set out below:

Parental Leave

25A.
(1) An employee, who is a parent of a child, is entitled to at least ten consecutive days parental leave.

(2) An employee may commence parental leave on-
(a) the day that the employee’s child is born; or
(b) the date—

(i) that the adoption order is granted; or
(ii) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of a 30-day-adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence parental leave; and
(b) return to work after parental leave.

(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the—

(i) employee’s child is expected to be born; or
(ii) date referred to in subsection 2(b); or

(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

Adoption Leave

25B.

(1) An employee, who is an adoptive parent of a child who is below the age of two, is subject to subsection (6), entitled to—
(a) adoption leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.

(2) An employee may commence adoption leave on the date—
(a) that the adoption order is granted; or
(b) that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child, whichever date occurs first.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence adoption leave; and
(b) return to work after adoption leave.

(4) Notification in terms of subsection (3) must be given—
(a) at least one month before the date referred to in subsection (2); or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6) If an adoption order is made in respect of two adoptive parents, one of the adoptive parents may apply for adoption leave and the other adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two adoptive parents.

(7) If a competent court orders that a child is placed in the care of two prospective adoptive parents, pending the finalisation of an adoption order in respect of that child, one of the prospective adoptive parents may apply for adoption leave and the other prospective adoptive parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two prospective adoptive parents.

Commissioning parental leave

25C.

(1) An employee, who is a commissioning parent in a surrogate motherhood agreement is, subject to subsection (6), entitled to—

(a) commissioning parental leave of at least ten weeks consecutively; or
(b) the parental leave referred to in section 25A.

(2) An employee may commence commissioning parental leave on the date a child is born as a result of a surrogate motherhood agreement.

(3) An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to—
(a) commence commissioning parental leave; and
(b) return to work after commissioning parental leave.

(4) Notification in terms of subsection (3) must be given—
(a) at least one month before a child is expected to be born as a result of a surrogate motherhood agreement; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable.

(5) The payment of commissioning parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

(6) If a surrogate motherhood agreement has two commissioning parents, one of the commissioning parents may apply for commissioning parental leave and the other commissioning parent may apply for the parental leave referred to in section 25A: Provided that the selection of choice must be exercised at the option of the two commissioning parents.

This landmark legislation does not apply to mothers who give birth as they are entitled to maternity leave, which is four months maternity leave, in terms of the Basic Conditions of Employment Act.

Maternity leave is paid out of the Unemployment Insurance Fund (UIF). Parental leave, adoption leave, and commissioning leave will also be paid out of UIF. Employees will be given a partial pay out of up to 66% of their salary from the UIF.

We recommend that employers amend the employment contracts to include this new law and further make their employees aware of their new rights.

Reference List:

  • Basic Conditions of Employment Act 75 of 1997
  • Unemployment Insurance Fund Act 63 of 2001
  • Labour Law Amendment Act of 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)

“Of course I have experience in…”

March 16, 2020 / / Comments Off on “Of course I have experience in…”

October 2019, was Justice month as Ramaphosa signs in various new laws, one of them being CV Fraud. Do you embellish your curriculum vitae to increase your chances of procuring a new job? A fake matric certificate, inflated education, fake degree certificates and unfinished degrees are some of the common embellishments that are found on a CV.

Ramaphosa signed in the new National Qualifications Framework Amendment Act (hereinafter referred to as the “Act”), which aims to prevent South Africans from mispresenting their qualifications in their curriculum vitae. Misrepresentation of your qualifications persuades the employer to offer you employment under false pretence, as you would probably meet their requirements. Mispresenting yourself on your CV can also be career-limiting, as we live in the digital age, where information is at our fingertips and it will not be long before it is discovered that the qualification or skill is fraudulent.

This Act permits the South African Qualifications Authority to establish and maintain separate registers for professional designations, misrepresented qualifications and fraudulent qualifications. This register will name those who misrepresent themselves and/or fraudulently list false qualifications on their CV. It will also be considered an offence if falsified information is entered into the register, hence if your name is on the register, it will be taken seriously. But the Act goes further, bragging on social media platforms such as Facebook, LinkedIn, etc. that you have a qualification which if found to be false, is now considered a serious offence as well.

The amendments to the Act introduces punitive penalties for those found to be lying in their CV. The penalty for CV Fraud is a fine or up to five years imprisonment.

But the Act has also placed an administrative as well as a monetary burden on employers and educational institutions, skills development providers and quality councils, who before appointing and or registering any person, must verify whether any qualification of such person is registered on the national learners’ record database. Should it be found that the qualification is not registered, it must be referred to the South African Qualifications Authority for verification, who will conduct the verification at a prescribed fee.

The Act makes provision for there to be consequences for education institutions and education skills providers who falsely claim to be registered on the National Qualifications Framework.

Good faith can also get you out of “hot water”. If you did a qualification in good faith believing it was a legitimate qualification, this can be used as a defence if charged with contravening the Act and you may be acquitted and the relevant institution will be charged and may be liable to a fine and criminal conviction.

Do you have an onus to report if you are aware of someone who misrepresented themselves on their CV and does not report them? No, you do not. You will not face legal charges if discovered that you were aware but did not report it.

Examples of top executives that have lied on their CV  is Passenger Rail Agency of South Africa (Prasa) suspended its chief engineer, who subsequently resigned amid allegations that he falsified his qualifications. Daniel Mtimkulu headed the engineering team that designed new Afro 4000 locomotives delivered to South Africa in January, at a cost of R600 million. He reportedly claimed to have an engineering degree from the University of the Witwatersrand (Wits), before studying in Germany to get his doctorate. Wits, however, said it did not have any record of Mtimkulu attending the university.

Some other examples to note, include Pallo Jordan, a former South African cabinet minister, who claimed to have a doctorate from the London School of Economics, when he did not; Hlaudi Motsoeneng, SABC COO, claimed to have a matric certificate, which was untrue; and Ellen Tshabalala, former SABC chairperson, who claimed to have postgraduate degrees from UNISA, which remains elusive.

In 2015, a screening company noted that there was a record high of CV Fraud and this could be due to the unemployment rate in South Africa, but one has to ask, is it worth it being unemployed permanently due to fraudulent misrepresentation or achieving a degree and being employed permanently?

Employers be sure to check your potential job applicants and ensure you’re employing the best and legal employees!

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)

Unbearable working environments

March 12, 2020 / / Comments Off on Unbearable working environments

Constructive dismissal is defined as a situation in the workplace, created by the employer, that renders the continuation of the employment relationship intolerable to the extent that the employee has no other option but to resign.

In CEPPAWU & another v Glass & Aluminium, the Court explained it best, stating that constructive dismissal involves a resignation due to the work environment becoming intolerable for the employee as a result of conduct on the part of the employer. Section 186(1)(e) of the Labour Relations Act (“LRA”) states that in circumstances where an employee terminated a contract of employment, with or without notice, because the employer made continued employment intolerable, the termination of the contract would constitute a dismissal.

In Pretoria Society v Loots, the Court referred to Jooste v Transnet Ltd t/a SA Airways and stated that the first requirement of an employee is to prove that the sole motive behind the resignation was the employer’s intolerable conduct. In addition to the above, the employee must prove that the employer was solely responsible for the intolerable conditions and that there was no other way of resolving the matter.

There have been many referrals of constructive dismissal to the CCMA that have not succeeded. Referrals based on salary increases not been granted, bonuses refused, unfavourable work performance assessments, being overlooked for promotions are all examples of referrals that have not succeeded in the past, as the employee cannot prove the employer’s sole responsibility for the intolerable work conditions.

There are, however, some instances in which employees have succeeded, e.g. a dismissal based on the employer having followed an unfair disciplinary procedure, resulting in the resignation of the employee. In Van der Riet v Leisurenet Ltd t/a Health & Racquet Club, the employee resigned after being demoted as a result of a restructuring exercise. The employer’s failure to consult with the employee was considered unfair and provided sufficient basis for a claim of constructive dismissal. Other matters, such as sexual harassment resulting in the employee’s resignation, may also constitute a constructive dismissal. These areas of constructive dismissal are difficult to handle as there are no “one-size-fits-all” rules. Each case is dealt with on its own merits.

In National Health Laboratory Service v Yona & Others, the Labour Appeal Court did not consider that a resignation on one month’s notice could be construed as a constructive dismissal. In Volschenk v Prima Africa (Pty) Ltd, the Court found that it was inconceivable that an employee would resign on two months’ notice if the employer had made conditions intolerable. This position should not be interpreted as establishing a general principle that resignation on notice is a bar to a claim of constructive dismissal. Resignation on notice can have a bearing on whether a resignation will be construed as constructive dismissal, especially when regarding the factors the employee claims made their employment intolerable.

Employers should note that while constructive dismissal may be difficult to prove, it is not impossible. Tactics like victimization, harassment and/or false disciplinary steps in the hopes of eventually getting the employee to resign, will not work. Legal advice should always be obtained from a legal professional before acting on any matter that may have an effect on the employment relationship.

Reference List:

  • CEPPAWU & Another v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC); [2002] 5 BLLR 399 (LAC).
  • The Labour Guide.
  • The Labour Relations Act 66 of 1995.
  • Pretoria Society for the Care of the Retarded v Loots [1997] 6 BLLR 721 (LAC);
  • Jooste v Transnet Ltd t/a SA Airways (1995) 16 ILJ 629 (LAC);
  • Van der Riet v Leisurenet t/a Health and Racquet Club [1998] 5 BLLR 471 (LAC);
  • National Health Laboratory Service v Yona and Others (PA 12/13) [2015] ZALAC 33; [2015] 10 BLLR 1002 (LAC); (2015) 36 ILJ 2259 (LAC) (12 May 2015);
  • Volschenk v Pragma Africa (Pty) Ltd (C414/13) [2014] ZALCCT 24; [2014] 11 BLLR 1146 (LC); (2015) 36 ILJ 494 (LC) (27 May 2014)

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)

A two-way street that ensures a reliable investment

March 12, 2020 / / Comments Off on A two-way street that ensures a reliable investment

Investing in a property can be one of the best decisions you make. It is also one of the investments you need to consider most carefully to make sure you continue reaping its benefits when the market shifts.

The key to an informed purchase and continuing growth is keeping up to date with the property market. Fluctuating factors such as the economy and social norms affect the property market greatly. Do your research and find out what property is best to purchase at present that will continue to benefit you even when social norms and the economy change.

Your tenants are the heart of your rental experience – keeping them content is important. As a landlord, you need to consider more than the legal regulations of the Rental Housing Act, you also need to keep the lifestyles of tenants in mind. Finding a property that gives your tenants access to that which suits their lifestyles will ensure constant occupancy of your property. This is also a good way to regulate the type of tenants interested in your property. Quiet neighbourhoods with coffee shops and book shops close by will attract a different tenant than properties close to a shopping mall, for instance.

Make sure the price is right. Times are tough financially, especially for those who have to rent a property. Tenants go for the more affordable option, so make sure your price is comparable to similar properties. Also, ensure you adjust your rent according to the rise and drop of the economy – asking too much when it’s already difficult to make ends meet will not only result in unhappy tenants, it could also result in your tenants falling behind in payments.

When you do decide to increase the rent, think about whether the benefit is worth it. Consider lowering the 10% increase norm to 5%, for instance, as a compromise that will keep both parties happy. Keeping reliable tenants is always a better decision than finding new ones. Even when your return is lower than it could have been, a reliable investment is better than gambling for a bigger one. And remember, keeping the property in good condition, with regular inspections and maintenance, is just as important as considering your tenant’s bank account.

Make the most of your rental property and build a lasting relationship that ensures a reliable investment.

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)

The (high) rise of the sectional title

March 12, 2020 / / Comments Off on The (high) rise of the sectional title

Where starter homes in quiet suburbs used to be the norm when it came to first buys for working professionals and young couples, it seems like J.G. Ballard’s 1975 novel, High Rise, may have predicted the future of residential development accurately. More and more individuals and families alike are choosing to opt for sectional title residence over freestanding homes and townhouses, much like the futuristic high-rise apartment buildings in Ballard’s novel.

Most tenants choose real estate that ascends to the heavens or cocoons you in the midst of other properties for two simple reasons: as a status symbol; or as a lifestyle choice. The status group, though, are in the minority. Think of authors who flood to New York’s Brooklyn, or the apartments of Paris and London, simply because so many great authors have written their masterpieces on those same streets. No matter the price, the location is what is important.

Those who choose sectional title residences to enable a more functional lifestyle, however, are the true reason for the shift in residential status quo. With working parents spending most of their days at the office and children spending more and more hours at school and at extra-curricular activities, residences have become more of a pit-stop in modern society, rather than the home that makes us think of Sundays with the family and evenings spent around the dining room table…without any smartphones, thank you very much.

Due to this, the focus has shifted from space to accessibility. As financial strain increases, saving on commute and travel to shops, restaurants, the gym, etc. is a primary benefit of sectional title living. Lifestyle hubs, with convenience stores, restaurants and gyms built on the same grounds as the living quarters, are becoming more and more popular for exactly this reason. These tenants rarely need to fish out their car keys. The increase in vehicle batteries that run down may actually become a problem.

Although we’re not close to the future Ballard predicted, where 40-storey high-rise apartments begin to fill the skyline, this may be the perfect time to consider choosing the residential solution perfect for our age.

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)

Is an e-will valid in South Africa?

March 12, 2020 / / Comments Off on Is an e-will valid in South Africa?

In terms of South African law, for a will to be accepted as valid by the Master of the High Court (a statutory body to which deceased estates are reported), it must comply with the legal formalities as set out in section 1(a) of the Wills Act, 7 of 1953 (hereinafter referred to as the Wills Act).

The main requirements in terms of the Wills Act are that the will must be signed by the testator and two competent witnesses, all in the presence of one another. Non-compliance with the formal requirements of the Wills Act will render the will invalid and void. Please note that a certified copy of a signed will is not valid as the Master of the High Court will only accept an original signed will.

An electronic will is a will saved as a data message, email or word document on a hard disk or memory device. This type of will is usually typed on the computer/email/data message, but there is no actual signature which allows the law to recognise the document as authentic.

The legislator saw a need for a court to be able to declare a will valid even though it does not comply with the formalities of the Wills Act and added section 2(3):

“(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1955, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)”

Therefore, a will that is drafted electronically can be regarded as a validly executed will if application is made to the High Court and the court is satisfied that (a) the document was drafted by the deceased (b) the deceased has died since the drafting of the document and (c) the document was intended by the deceased to be his last will.

Currently, there is no legal certainty as to how and when electronic data can be used for the purpose of conveying your final will. Until the Wills Act is amended to include electronic wills, it would be best, if you wish to avoid complications, to draft your will the old-fashioned, hard-copy way and have it properly executed in terms of the Wills Act.

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)

The principles of good ethics in the workplace

March 11, 2020 / / Comments Off on The principles of good ethics in the workplace

Ethics are a set of moral values that are relied upon when it comes to making decisions. In the workplace, ethics are an essential component in responsible decision-making. Ethics are more than just words used to enhance the image of a business; they are the very foundation of success. Ethics are not just a guideline for making decisions, but also the criteria on which other people judge you. In business, this is extremely important, because how people view you and your company forms the cornerstone of building trust, and if you choose to make unethical decisions, you will lose credibility, and your company will suffer.

All businesses have the right to develop their own set of ethics. There are, however, certain principles that all businesses should strive to incorporate into their business:

  1. Respect

Probably the most important component of being ethical is “respect” – one should treat everyone with respect, no matter who they are. You can do this by being courteous and treating everyone the same. Ethical workers understand the significance of diversity in the workplace. If you respect others, you will always hear and consider their opinions and when you value everybody’s contributions, creativity will prosper and problem-solving will become easier because you have more options to choose from.

  1. Honesty and trust

You must be honest in everything you do. When people see that you are transparent in your decisions, they will trust your company because of your honesty. People will only do business with people they trust. Being ethical in the workplace means that you do not mislead others by misrepresenting the facts or not telling the whole truth.

  1. Fairness

Fairness shouldn’t be just something you hope for in the workplace, it should be a standard practised by all. Opportunities for career development should be fair; there shouldn’t only be focused on exemplary employees. The way conflicts get handled should also be treated fairly; no favouritism. Fair procedures will ensure happy employees, which is essential if you want to keep your customers happy – happy internal clients mean happy external clients!

  1. Lead by example

The ethics used by leaders of a company to manage employees may impact the values and loyalty of employees. The code of ethics that leaders use is indirectly connected to the procedures of the company as well as the behaviour of the employees working for the company. When leaders have high ethical standards, their workers will be encouraged to meet that same level. Ethical leadership also enhances the company’s reputation. To lead by example means to set standards that other people would want to follow, instead of conforming to the norm. This will make your company stand out from other competitors.

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)

Has your braai been approved?

March 11, 2020 / / Comments Off on Has your braai been approved?

Every HOA has applicable building guidelines which are stipulated in a Constitution or Memorandum of Incorporation (“MOI”) which every homeowner should be made aware of, read and understood. The guidelines will differ from estate to estate and it is important for the homeowners to adhere to these provisions.

When one wants to erect a building structure on one’s property, written plans have to be lodged with the Homeowners’ Association for consideration. The plans must be within the building guidelines provided for in the Constitution or MOI and based on that, the HOA together with their architect will make a finding. If one erects a structure without these plans, a complaint may be lodged with the municipality and one may receive a notice to obtain written approval for the authorised building work following a summons to appear in court.

The notice to be served on a homeowner who has erected any building, excluding a temporary building, is being or has been erected without prior approval from the local authority shall be served with a notice, calling upon him/her to obtain the approval, in writing, as required by The National Building Regulations and Building Standards Act No. 103 of 1977 (“the Act”), by a date specified in such notice. Failure to comply with such a notice may constitute to a criminal offence in terms of Regulation A25(11) of the Act.

If the homeowner fails to comply with the notice, the following procedural step will be a Summons in a Criminal Case. The charges may be based on the contravention of S4(1) of the Act, which states that no person shall without prior approval, in writing, of the local authority in question erect any building in respect of which plans and specifications are to be drawn and submitted in terms of such Act. In addition, Section 4(4) of the Act which states that any person erecting any building in contravention of Section 4(1) shall be guilty of an offence and liable on conviction to a fine not exceeding R100 for each day on which he was engaged in erecting such building.

Due to the homeowner failing to comply with the notice first served, he/she will then be charged with the contravention of Regulation A25 (10) of the Act as well. In essence, he/she would then be charged with the Count 1, the contravention of Section 4(1) and Section 4(4) of the Act and Count 2, contravention of Regulation A25(10).

The penalty awarded to an accused if found guilty will be decided on a case-by-case basis. The Court may consider the nature and the amount of the penalty, the aim of the penalty, which is to compel compliance with the Constitution or the MOI.

The Act makes provision for a general penalty clause where any person convicted of an offence under this Act in respect of which a fine or imprisonment is not exceeding R600 or to imprisonment for a period not exceeding 6 months and Section 4(4) of the Act makes provision for a person to be found guilty of an offence and may be found liable on conviction to a fine not exceeding R100 for each day on which he/she was engaged in erecting such building. However, the court may reduce the penalty to such an extent as it deems equitable or reasonable in the circumstances.

It is clear from the above that the consequences of erecting a structure on one’s property without approved written building plans could be hefty and is something that can be easily avoided when one exercises a bit of patience.

Reference List:

  • The National Building Regulations and Building Standards Act No. 103 pf 1977 (as amended)

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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