On the 2nd of June 2020 the Gauteng High Court handed down judgment declaring that the regulations under alert level 3 and 4 to be unconstitutional but many people are left confused wondering:

  1. What does that mean for me and my family?;
  2. How did this come about? and
  3. What are the consequences if any of such a judgment?.

It is important to start, like any story, at the beginning and the same can be said when it comes to the enactment of laws and regulations.

Who makes laws in South Africa:

Parliament has the necessary legislative powers to make law, amend laws, and repeal laws. These laws however are voted on by parliament as a whole and need cabinet approval before they can come into existence. Most laws have to go through a strict step by step process before they are enacted.

How were the regulations under alert level 3 and 4 enacted?

The state of disaster which was declared by the President this allowed the government to enact the regulations under the Disaster Management Act.

These regulations were unilaterally enacted. Meaning it skipped the normal strict process of enactment due to the fact that it was an emergency situation and there was no time for due process.

Why the regulations were considered to be unconstitutional:

In certain instances, the government can limit citizens right under the constitution if such limitation is rational.

However, the court, in this case, has found that these regulations limit citizens rights to an extent that is not rational and can be seen as contradictory such as (to list a few):

  1. You can walk on the promenade which can be classified as exercise but you cannot be on the actual sand or in the sea itself;
  2. You cannot visit with your close or immediate family members but you can attend their funeral when they die;
  3. You are allowed out in public to exercise but only between the hours of 5 am-9 am.

What happens now:

The minister has 14 days from date of judgment to make the necessary changes to the regulations to abide by the court’s decision however, it is important to note that the minister can appeal this decision to a full bench of the High Court or take the matter to the Supreme Court of Appeal for hearing.

For now though as citizens we are to abide by the regulations until we are told otherwise because at present those are the laws still before us.

Reining of power by the government:

There is a very interesting interview done on 5fm radio with Eitan Stern from Legalese where he outlines governments power to sometimes to do as they deem fit without fully taking into account the citizens of the country and likened his example loosely on what is happening in the United States where the government is forcing police and military to break up protests against racial violence which in effect is creating more violence.

He states that although the two countries are in two very different situations the use of power used by the government, although the intentions may be good for its citizens, has in many circumstances made the relationship of trust with citizens and government worse.

This can be seen in our country by the lack of communication, the executive decisions by the National Comand Council, and the gross misuse of power by certain ministers.

If you would like more news on what is happening in our country and any laws you may be confused about please feel free to contact us today on 031 003 0630 or email us at Charmaine@schwenninc.co.za .

 

 

 

 

Section 26 of the Constitution:

This section stipulates that everyone has the right to access adequate housing and that it is the duty of the state to provide its people with the necessary resources to have said access.

We, however, know that in South Africa there is already a high percentage of our population that do not have adequate housing and we also know that our government does not have the necessary resources to rectify this epidemic.

With COVID 19 on the rise and many people being retrenched the number of evictions and homelessness it seems will only increase.

Rental Collection:

In normal situations, there are two or more parties to a lease agreement whether it be commercial or residential. If the tenant defaults on their monthly payments the owner would give notice of default, place the tenant in breach, cancel the agreement, and then would sue the tenant for arrear rental.

However, these times are different in that no one could have foreseen the possibility of a virus affecting our lives so suddenly and having such a drastic impact.

Within a contact, there may be two clauses that make provision for such unforeseen circumstances.

  1. Force Majeure: This is an act of God, one that neither the tenant nor the owner had any control over. Because of this act, no one could go to work and earn an income and therefore could not pay rent or meet their other financial obligations.

 

  1. Supervening impossibility: This is an impossibility to act either physically or legally. One cannot work during lockdown and alert levels or be vacated at certain times legally due to the regulations given by the government.

Solutions to non- payment:

Your agreement should lead you in terms of the path you can take however, these are difficult times and in saying that this leaves the door to communication and negotiation to take place. The following have been brought up lately as the main solutions:

  1. Deposit utilization: Using the deposit the tenant put down that is usually returned if no damage to the property is found when they vacate the premises. This can be used in the place of rent.

 

  1. Deferment of rent: Some refer to this as a payment holiday. This essentially just means that for a period of time you will be on a reduced payment plan or in some cases will be granted to not pay anything depending on your financial circumstances. This “holiday” however will ultimately increase your payment period and increase your interest on your payments in the long run especially for those who have bonds.

It is important that everything is agreed in writing between the parties and that there is compromise during this time as litigation will indefinitely be expensive if not solved amicably.

Evictions:

Previously the Disaster Management Act had stated that during lockdown no one could be removed from premises, this has since been repealed.

According to Regulation 19 of the Act one can Evict a tenant at any time however said eviction will have to be stayed until the end of alert level 4 which has yet to be announced and will need to be stated in the PIE application.

For any questions on property law whether you are a tenant or an owner please contact us on Charmaine@schwenninc.co.za or call us on 031 003 0630.

Most businesses have been struggling to stay afloat and some have considered cutting a number of their employees while some are totally closing down and not surviving the COVID 19 lockdown period.

Before deciding on totally closing down your business or company you might want to consider a business merger with a company or business that offers or renders the same goods and services like yours, or products that supplement or complement your existing business.

What is a Merger?

A Merger takes place when two independent companies combine their businesses which takes place by mutual consent or through a hostile takeover. From an economic perspective, there are three kinds of mergers that one might consider. The horizontal, vertical, and conglomerate mergers.

What is a horizontal merger?

A merger between firms operating on the same level of supply chain selling substituted products in the same geographic area. These include competitors like clothing stores. This type of merger is the most popular as it involves businesses and companies applicable in our daily lives.

What is a Vertical Merger?

A vertical merger entails the integration of companies or parties involved in different stages of the supply chain of a common product or service. An example of vertical integration would be a business merging with its supplier.

What is a Conglomerate merger?

Conglomerate merger covers all other types of mergers that are neither horizontal nor vertical in nature. These are transactions that take place between parties that have no apparent economic relationship. An example of a conglomerate merger would be a mining company and motor manufacture.

How are mergers categorized in terms of the Competition Act.

The Competition Act classifies mergers into 3 categories on the basis of total annual turnover assets of parties to the merger – Intermediate, Large, and small.

What constitutes an Intermediate Merger?

The combined annual turnover or assets of the acquiring firms and target firms in, into or from South Africa is less than R60 million or more.

The annual turnover or assets of a firm into or from South Africa is less than R80 Million.

What constitutes a larger merger?

The combined annual of assets of both the firms must is equal to or more than R6.6 million and the annual turnover or value of the transferred/ target firm is at least R190 million

There are many reasons why it might be a good idea to consider a business merger other than completely shutting down your company.

What constitutes a small merger?

A small merger is classified in terms of Section 13(2) of the Competition Act as a merger that does not fall under the intermediate and large mergers.

Do I have to notify the Competition Commission if we decide to embark on a business merger?

Yes, the Competition Commission must be notified of an intermediate and a large merger. A small merger can be notified of voluntarily within 6 months after implementation.

You might want to consider a business merger before concluding on shutting down your business or company completely. Gather as much information even if it’s a small merger but it’s worth keeping your name in the business industry and helping your business makes it through the COVID-19 period.

 

For any more questions you would like answered about your business please contact us today on Charmaine@schwenninc.co.za or 031 003 0630.

Donations of a body or tissue from a body is usually done for two reasons:

  1. For therapy; or
  2. For research.

Donations can only be given to beneficiaries who have licenses and are authorized to deal with bodies and tissue such as hospitals or universities that are involved with medical and or dental training.

Requirements for donations:

The biggest requirement for anatomical donations is consent. The consent of the person must be made when that person is competent when giving their consent which can be done in one of the following three ways:

  1. In his or her will;
  2. In another document signed by the donor with the signatures of at least two competent witnesses over the age of 14 years old; or
  3. Orally in the presence of at least two competent witnesses over the age of 14 years old (not recommended).

When the donor did not express consent:

There may be instances where the donor did not express consent for a donation. In these instances, his or her spouse, major child, parent or guardian or major sibling at the time can make the decision to give consent on behalf of the donor.

What if no family can be found:

There are provisions that allow a district surgeon to give consent for a donation if the deceased’s family cannot be located and he/she is convinced that reasonable steps were taken to try and locate said family members. Two doctors also need to confirm in writing that the tissue of the body of the deceased is required immediately to save the life of a recipient or in the case of eyes their sight.

Void donations:

Donations will be void if the donor or any other person negotiates and or receives compensation for any anatomical donation.

Can you revoke your consent:

Yes, consent can be revoked the same way it was given (in writing, signed and witnessed) or simply the document giving consent can be destroyed.

For more information on the rights to your body and the law of persons contact our offices today on 031 003 0630 or email us on Charmaine@schwenninc.co.za.

Traditionally, dispute resolution is effected through the relevant court having jurisdiction over the matter.  This can entail delays, as our court rolls are very full. Fortunately, disputes can still be settled formally without undergoing the expense of a trial.

We always consider Alternative Dispute Resolution (ADR) as the first possible step in any dispute and conflict resolution scenario, especially if the parties have a contract that provides in detail how and when ADR should or could proceed.  (Another reason to see your attorney BEFORE you sign any contracts).

This can be an appealing option for all parties, ADR encompasses the processes of resolving legal disputes as alternatives to the traditional time consuming and costly court litigation processes.

An ADR Process That Works for Your Dispute

ADR includes different mechanisms or processes to resolve disputes instead of proceeding with court litigation.

There are various methods of alternative dispute resolution in business, namely mediation, arbitration, and facilitation.

 

Mediation

The mediator helps parties to discuss their disputes in a controlled and safe environment to find mutually agreed solutions. The disputes usually involve legal issues, but the mediator does not decide the outcome.  The goal of the mediation is to try to find a win/win solution if possible and allows more room to be creative with solutions rather than the traditional win/lose court model.

 

Arbitration

Your attorney will represent you at the Arbitration and lead your case before the arbitrator.  The arbitrator listens to parties’ conflicting versions in a dispute and decides on how it will be resolved. This is similar to a court procedure but it’s less formal, more flexible, and usually much quicker.  The arbitrator makes a win/lose decision-based on the merits of both party’s evidence.

 

Facilitation

The facilitator helps to resolve problems between people usually involving dysfunctional inter-personal or working relationships. The facilitation can be between two parties or amongst multi-parties.

 

What Are the Benefits of Alternative Dispute Resolution?

The common primary advantage is that ADR is usually much quicker and can be (in the long run) a less costly way of resolving disputes compared to court litigation.

 

What Are the Disadvantages of Alternative Dispute Resolution?

Alternative Dispute Resolution services are usually provided by professionals in private practice for a fee.

The parties usually agree to share the costs of the ADR practitioner equally. This is unlike the usual court process, where each party pays only their own attorney and the services of the Judge or Magistrate are provided by the state.

However, the shared costs of ADR processes are usually much less than the costs of legal fees in protracted court litigation.  In our opinion, the value and speed of an ADR produced solution to a dispute far outweighs the costs of the ADR service provider.

We will help you make an informed decision on the merits of participating in an ADR process before agreeing to do so. This includes information to make a cost-benefit analysis of whether to opt for ADR instead of court-based litigation.

 

Want to know more?  Contact Charmaine Schwenn : charmaine@schwenninc.co.za : 031-0030630

The disappearance of a person creates a big problem namely because:

  1. An estate would need to be administered;
  2. Heirs may require inheritance at some point or another; and
  3. The missing person’s spouse may want to remarry.

In the first case, one would need to apply to the High Court for an appointment of a Curator Bonis to oversee and distribute the estate of the missing person while the person is missing. However, for the last two scenarios, which presume the death of the person, you would need to make an application to the High court for an order that the missing person is to be presumed to be dead.

The Presumption of death can be done in two ways:

  1. In terms of the Common law: where any person living in the area of the missing must prove on a balance of probabilities that the person is dead; or
  2. In terms of Statutory law: which would allow the court to state that the person died of unnatural causes

South African Courts unlike English Courts don’t solely look at the period of time that someone is missing but look at many factors which someone went missing such as:

  1. The circumstances which the person disappeared;
  2. The period of time they have been missing for;
  3. Age of the missing person; and
  4. The health of the person.

It is important to note that this order is rebuttable and can be set aside as it is a presumption of death and not a guarantee of death.

It is also to be kept in mind that there are consequences to the order of presumption of death such as:

  1. When inheriting, heirs must pay over security in case the missing person returns, this includes payments from life policies; and
  2. Spouses who want to remarry have to apply for a dissolution of the marriage by an order of the court as the presumption of death in no way dissolves the marriage of the missing person and their spouse.

For more information on the law of persons please contact our offices today on 031 003 0630 or email us at Charmaine@schwenninc.co.za

 

After the announcement that our country might go on a lockdown a few businesses, retail shops and companies have been engaging in the practice of price increment and excessive charging of goods and services. This is based on the fact that most goods and services have been on higher demand as people are preparing for the lockdown. The excessive charging of goods has been mostly spotted on food items and cleaning essentials including bath soaps and sanitizers.

Fairness

The Competition Commission promotes a fair, accessible and sustainable market for consumer products and services and the Consumer Protection Act prohibits certain unfair marketing business practices.

Prohibitions

Suppliers are not permitted to charge unfair prices for the same goods and services as this allows competitors in the market to agree on price-fixing rather than competing with each other. As a consumer, you have the right to be treated equally, irrespective of gender, race, socio-economic status or geographical location.

Your Right to fairness

Your right to fair and reasonable prices gives rise to your right to lodge a complaint against any business or company unfairly charging excessive prices and misleading consumers as means of competition or making up for the loss on quite seasons. The National Consumer Commission in connection with the Equality Court allows for consumers to approach it for complaints against prohibited and unfair practices.

Reporting cases

Should you find yourself facing a situation of unfair excessive pricing of goods, the Competition Commission has appealed that each consumer faced with the situation should not hesitate to report each case of unfair treatment against consumers. Our firm promotes equality and fair treatment of consumers.

For more information contact Charmaine on charmaine@schwenninc.co.za.

 

Written by Portia Dlamini.

Large and small building works are commonplace in most neighbourhoods. Do you know when you are required to have plans drawn up and obtain municipal approval for your alterations at home?

 

You will require plans to be drawn up, quite obviously for new homes. You will also need plans drawn up for additions to your existing building structure or alterations to your existing building structure. This includes your exterior wall.

 

What may not be so obvious is that you will need building plans drawn up for the following internal alterations:

  1. Walls removed, moved or added;
  2. Walls raised or lowered;
  3. Doors or windows size or location changed;
  4. Use of a room is changed, such as converting a garage into a living space;
  5. Carport converted into a garage;
  6. Existing patio enclosed;
  7. Mezzanine floor added;
  8. Any material changes.

 

If you undertake minor building works, you still need to contact the building inspectorate at your local municipality who will inspect and provide the necessary exemption. Sometimes you may need to submit a drawing. You should not require building plans to be drawn for the following minor building works:

  1. Braais without a chimney;
  2. Garden sheds less than 3m
  3. Gate for cars within your property, unless partly on the pavement or municipal land;
  4. Replacing window or door frames provided that they are not load bearing and the opening is not enlarged;
  5. Minor repairs such as replacing roof tiles;
  6. New appliances or fitting such as bath or toilets provided there is no new plumbing or drainage.

 

It is always recommended that you employ a qualified professional to assist you with any alterations to your property and they should be able to advise you if plans are required. As the owner of the property, it is completely your responsibility to ensure that everything is done properly. Please remember that there are potential criminal implications if you go ahead with building on your property without the correct approval in place. You should always contact your local Building Inspectorate to ensure that the correct procedures have been followed before you start any building works.

For any information please do not hesitate to contact Liza Bagley on liza@schwenninc.co.za.

 

Written by Liza Bagley.

We are living through an unprecedented time in South Africa and the world.

An anomaly that now arises is what happens to divorced/separated/unmarried parents and their contact arrangements with their children over the national shut down.

Parents and children have certain rights. You will need to bear in mind, however, that certain rights are restricted in this state of disaster management. There will be limited, if any, access to courts over this time.

Parents should have an arrangement in place in terms of an agreement or a court order. Children moving between their respective parents now becomes potentially illegal.

The line will be drawn at considering their “home” to be the home of the primary caregiver. If the parents have joint primary care, it is advisable that the parents reach an agreement urgently regarding care over this time period, without the need for children to move between homes, except in the case of a medical emergency.

Please remember that maintenance is still payable between the parties, regardless of where the children reside during the shut down period. Any variations of maintenance needs to be by agreement.

For more information contact Liza on Liza@schwenninc.co.za.

Have you considered how COVID – 19 (or “Coronavirus“) affects any of your contracts in place?

Have you considered how COVID – 19 (or “Coronavirus“) affects any of your contracts in place?

 

The last thing that you want is issues with breach of contract on technicalities when we are all working so hard to keep our heads above water and our health in tact!

 

Some gremlins to look out for – what if…

 

  1. Building contracts eg. A building contract that requires site meetings and these are suspended or made into virtual meetings?

We would recommend a minor addendum to be signed so everyone knows where they stand.

  1. Contractual deliver dates : Suppliers or you run out of supplies and it affects your agreed delivery date? Does a penalty clause kick in and would now not be the time to review this?

 

  1. Employment law : you have your employees work remotely. We would recommend the signature of an addendum to the employment agreement that states when and how the employer can call the employee back to full time service at the work address.

 

  1. Debtor’s control – we know that tight times are coming. Now is the time to knuckle down on debtor handovers before your cashflow affects your firm permanently.

 

There’s a lot more to think of.  Contact us, we are a call or email away.

Charmaine Schwenn

charmaine@schwenninc.co.za

031-0030630

www.schwenninc.co.za