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Month: September 2020

What if your dismissal is overturned?

September 7, 2020 / / Comments Off on What if your dismissal is overturned?

Reinstatement in terms of the s 193(2) of the Labour Relations Act 66 of 1995 (LRA)

According to s193(2) of the LRA, if it is found that an employee was found to have been (substantively) unfairly dismissed, the Labour Court (LC) or the arbitrator, must make an order that the employee be reinstated, unless:

  1. The employee does not wish to be reinstated;
  2. A continued employment relationship would be intolerable;
  3. It is not reasonably practicable for the employer to reinstate the employee; or
  4. The dismissal is unfair only because the employer did not follow a fair procedure.

The employer cannot simply say that they are not going to reinstate the employee on the basis that they have employed someone else. In Mashaba v SA Football Association, the court held that “the right which the LRA provides is the right of an employee to be reinstated if their dismissal is found to be substantively unfair and provided none of the subsections are applicable. An order of reinstatement pays no heed to other contractual arrangements that might have come into existence between the employer and a replacement. That is of no concern to the arbitrator or the court and the employer is left to its own devices to sort out the mess it finds itself in, having employed someone and then being ordered to re-engage someone in the same position.”

Once there is an order of reinstatement, the dismissed employee and the employer can begin negotiations, to either compensate the employee or create an alternative position for them. However, if the dismissed employee wants to be reinstated in their previous position before dismissal, what will happen to the permanent replacement employee?

In Mashaba, the court goes on to say that “if the employer does not take suitable steps in its contract with the replacement, it ought to realise that it runs the risk that it will be faced with the possibility of terminating that relationship or of trying to re-negotiate the replacement’s contract if the former is reinstated”.

The Commission for Conciliation, Mediation and Arbitration Guidelines on Misconduct Arbitration provides that “The fact that another employee has been appointed in place of the unfairly dismissed employee is not in itself a reason to deny reinstatement, as the reinstatement of an unfairly dismissed employee may constitute a ground for terminating the employment of the newly appointed employee on the grounds of the employer’s operational requirements”. This guideline suggests retrenchment as the solution for the employer.

Retrenchment of replacement employees

Retrenchment will not be an easy way out for the employer. The replacement employee must be satisfied that the process of retrenchment has been properly followed.

Section 189 of the LRA provides for a process of consultation with the employee potentially facing retrenchment based on operational requirements. With regard to consultation, in Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union, the court stated that “the ultimate purpose of s189 is thus to achieve a joint consensus-seeking process. In this manner, the section expressly recognises the employer’s right to dismiss for operational reasons, but then only if a fair process aimed at achieving consensus has failed.” Such consultations may not yield a favourable outcome for the employee.

Conclusion

The permanent replacement employee may end up being unemployed if the retrenchment process appears to be justifiable or the Employment contract fails to make provision for this instance. It is, therefore, imperative that employers cater for this in the employment contract where there is still a pending unfair dismissal proceeding. It is best to consult an attorney when faced with this situation to advise on the best possible way forward.

Reference List:

  • De Rebus in 2020 (July) DR 8.
  • Mashaba v SA Football Association (2017) 38 ILJ 1668 (LC).
  • Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC).

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)

Determining the validity of your will

September 7, 2020 / / Comments Off on Determining the validity of your will

I gave instructions to my attorney to prepare a Will for me as my most recent Will no longer reflected my wishes. My attorney emailed the Will to me with clear instructions as to how I should go about signing the Will. I asked my neighbours to act and sign as witnesses. My neighbours signed the Will on all the pages and left before I signed the Will on all the pages. I am now worried about the validity of my Will as the email from my attorney states that I have to sign the Will in the presence of two witnesses. Is my Will valid?

The formalities for the valid execution of a Will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed … shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, for a Will to be valid, it must be signed in the presence of two witnesses, both witnesses being present when the Will is signed by the testator.

The two witnesses signed your Will in the presence of each other, but not in your presence. A similar set of facts presented itself in a court case heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the Will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior, for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 Will”) and another on 7 January 2014 (“the 2014 Will”). The 2014 Will was signed shortly before his death, leaving the bulk of his estate to his much younger lover.

One of the witnesses called to testify in court was a witness to the 2014 Will. Her testimony focused on the circumstances surrounding the signing of the 2014 Will. She testified that she and her husband met the deceased in the street. As they were acquainted, they engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a Will. She and her husband were asked if they would accompany the deceased to sign the Will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the Will and immediately left before witnessing the deceased signing the will. Hence, the 2014 Will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 Will and that he signed the 2014 Will. However, the 2014 Will was signed by the deceased after the two witnesses to the Will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act, in terms whereof no Will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the Will is not valid for want of compliance with a statutorily required formality.

The court, therefore, found the 2014 Will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 Will, the 2011 Will was declared the Will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your Will is thus invalid and it is advisable for you to print the Will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the Will at his office.

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953

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)

No work-no pay – What does the law say?

September 7, 2020 / / Comments Off on No work-no pay – What does the law say?

Many employers were left in the dark after the President of the Republic of South Africa declared a national state of disaster in terms of the Disaster Management Act, 2002, and implemented a national lockdown thereafter, as a means of reducing the spread of COVID-19. Employers who did not provide “essential services” were in an extraordinary position and due to the uncertain future, a lot of industries faced immense financial pressure.

Besides the grants the South African government made available to employees during the lockdown, to assist employers with their financial strain, , most employers were still left with the burdensome decision of possibly reducing salaries, retrenchment or finding another means to get through the difficult period. As both former options entail strict procedures, which may be both difficult and costly, the principle of “no work – no pay” became the desirable method of keeping businesses afloat.

On the 3rd of June 2020, the Labour Court handed down a judgement in Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and others [2020] JOL 47372 (LC) (“Macsteel”). The case was brought before the court on an urgent basis to make an order regarding the status of an unprotected strike. The Labour Court, in order to address the problem at hand, discussed the options of employers during this national outbreak of COVID-19, with specific reference to the “no work – no pay” principle. Even though the Employer in the matter, did not apply the said principle to its employees and continued to pay its employees in full despite the fact that they were not able to render their services. The court made it clear that the principle would be ideally suited for the current circumstances that employers are facing. The court further held that:

“The reality in law is that the employees who rendered no service, albeit to no fault of their own or due to circumstances outside their employer’s control, like the global COVID-19 pandemic and national state of disaster, are not entitled to remuneration and the Applicant could have implemented the principle of ‘no work – no pay’.”

The said judgment provided clarity on the matter, especially during these uncertain times.

Ironically enough, on the same day, the High Court of Johannesburg, in Mhlonipheni v Mezepoli Melrose Arch (Pty) Ltd and Others; Lwazi v Mezepoli Nicolway (Pty) Ltd and Another; Moto v Plaka Eastgate Restaurant CC and Another; Mohsen and Another v Brand Kitchen Hospitality (Pty) Ltd and Another (2020/10556; 2020/10555; 2020/10955; 2020/10956;) [2020], did not uphold the “no work – no pay” principle and in fact held that employers have a legal obligation to pay its employees over the COVID-19 lockdown period. The facts of the matter, however, differ from Macsteel.

Even though there seems to be a stalemate regarding the “no work – no pay” principle, especially during the National Lockdown, the Macsteel matter seems to provide better reasoning regarding the hot topic. Due to the immense financial impact of the lockdown and the strict restrictions the government regulated during the lockdown, employers will be able to justify the implementation of the “no work – no pay” principle.

Reference List: 

  • Disaster Management Act, 2002.
  • Mhlonipheni v Mezepoli Melrose Arch (Pty) Ltd and Others; Lwazi v Mezepoli Nicolway (Pty) Ltd and Another; Moto v Plaka Eastgate Restaurant CC and Another; Mohsen and Another v Brand Kitchen Hospitality (Pty) Ltd and Another (2020/10556; 2020/10555; 2020/10955; 2020/10956;) [2020],
  • Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and others [2020] JOL 47372 (LC).

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)

Understanding the debt collection process

September 7, 2020 / / Comments Off on Understanding the debt collection process

Have you ever heard about the Sheriff of the Court coming to collect your assets and auctioning it off in order to cover your unpaid debt? Is it legal and what are the procedures that must be followed in order for the Sheriff to obtain authorisation to attach your property? Is this even possible if you have not yet appeared in court?

In order for the Sheriff of the Court to effect seizure of your movable, and in some instances immovable property, he/she will need the authorisation of a warrant of execution. The Registrar or Clerk of the Court only issues a warrant of execution after judgment has granted by an order of the court.

For the purpose of this article, reference will be made to the Magistrate’s Court Rules1 only, though similar civil procedure, relevant to the High Court, can be found in the High Court Uniform Rules.

The legal process:

Generally, though not compulsory, the creditor will send a letter of demand to the debtor to inform the latter of the intention to sue as well as the time period in which such performance is due. The claim can be for, inter alia, damages and/or an amount in arrears and/or any other performance due by the debtor. After the letter of demand is sent, the Plaintiff (person or entity suing) will officially start the legal proceedings with a summons, a document issued by the Registrar or Clerk of the Court and delivered to the Defendant (person or entity being sued) by the Sheriff of the Court.

When a summons is received, it is of paramount importance that the Defendant reads it diligently, since it contains information that pertains to the civil procedure, your rights and options in accordance with the law, as well as the particulars regarding the claim. Upon receipt of a summons, you have 10 days to file a Notice of Intention to Defend with the Registrar or Clerk of the Court.2 The notice should be followed by a Plea within 20 days, explaining why you are defending the matter.3 This is the start of the paper war between parties, which might end with, inter alia, a settlement agreement or civil trial. Both these outcomes might potentially lead to a court order that could authorise a warrant of execution.

Default Judgment:

Perhaps the most important process in the civil procedure affecting the Defendant is a default judgment. This is an order of the court that is granted in the absence of the Defendant authorising a warrant of execution. In terms of rule 12 of the Magistrate’s Court Rules, a default judgment may be granted when:

  1. The Defendant has failed to deliver a Notice of Intention to Defend within 10 days; or
  2. The Defendant has failed to deliver a Notice of Intention to Defend before a request for default judgment is lodged; or
  3. The Defendant has filed a Notice of Intention to Defend but has failed to file a Plea within 20 days thereafter; and
  4. The Defendant has received a final notice to file a Plea within 5 days.

The default judgment will consist of a court order stipulating the judgment amount as well the costs that the Plaintiff is entitled to as a result of the legal proceedings.

Warrant of Execution:

The warrant of execution can only be issued after judgment has been granted by the court and authorises the Sheriff of the Court to give effect to said judgment. The execution could be for the payment of money, delivery of movable or immovable property, or ejectment, and has to be issued and signed by the Registrar or Clerk of the Court. 4

It is a common occurrence that people want to defend a matter or state their case when a warrant of execution has already been issued and they are faced with the immediate threat of losing their valuables. In most instances, this might be far too late and the Defendant might be in a position with limited available remedies.

In practice, the Sheriff of the Court will execute the warrant by recording an inventory of the assets of the Defendant, which may, upon instruction from the Plaintiff, form part of an auction in order to satisfy the judgment debt and costs of suit.

In summary, letters and official notices addressed to you should be read closely as it might contain crucial information in respect of your legal rights and procedures to follow. If you are served with a summons, defend the matter if appropriate in accordance with the rules of the court. Alternatively, make arrangements with the Plaintiff for payment or settlement negotiations.

Reference List:

  • Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa

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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