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

 

 

It’s alarming how quickly the COVID – 19 (or “Coronavirus“) is spreading.  Employers and employees need to do all they can to limit the impact of this on businesses, as our economy is already under severe strain!  Businesses need to stay open and keep doing business or else!

 

Here are some answers we have sourced to the most common questions being asked right now:

 

  1. What is an employee’s sick leave entitlement?

The Basic Conditions of Employment Act (“BCEA”) regulates sick leave entitlement.  Each permanent employee is entitled to a “sick leave cycle” – 36 months’ employment with the same employer.   During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.  Usually (for an employee who works 5 days a week) this equates to 30 days’ sick leave per 36 months of employment.

  1. Must an employee be paid for sick leave?

An employer must pay an employee for sick leave: a) the wage the employee would ordinarily have received for work on that day; and b) on the employee’s usual pay day.

  1. When is an employer not required to pay sick leave?

An employer is not required to pay an employee for sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

  1. What are the basic requirements for the medical certificate?

The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council.

  1. What if sick leave is exhausted?

An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. However, we recommend that authorised unpaid leave be considered. In those instances, the employee must claim illness benefits in terms of the Unemployment Insurance Act 63 of 2001 (“UIA“).  In terms of section 20 of the UIA, a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness.

  1. When can an employee be dismissed due to the Coronavirus?

In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered.  The factors to take into account in considering alternatives to dismissal include, the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured.  During this process, the ill employee should be given an opportunity to make recommendations as well.  Only once all these processes have been followed and no alternative to dismissal found, an employer may consider dismissal.

  1. May employers consider retrenchments due to the impact of the Coronavirus?

Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements.  “Operational requirements” is defined as requirements based on the economic, technological, structural or similar needs of the employer.

A retrenchment is as a result of no fault on the part of the employee.  In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees.

At this point, the Coronavirus is unlikely to trigger an operational need.  The recommended period for recovery/isolation is 14 days – this in itself cannot trigger a need to retrench.  However, should a large number of employees be infected, an operational need could possibly arise in future.

  1. What can be done about employees who refuse to come to work?

Employees remain obligated to come to work, unless instructed otherwise by their employers.  Employees who refuse to come to work must have a valid reason for their absence.  The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work.  Employees who stay away from work without a valid reason, may face disciplinary action..  We encourage employees to rather speak to their employers about their concerns before making a decision to stay at home, without authorisation.

  1. Do employees have the right to work from home?

Employees do not have a right to work from home. Working from home may be considered by employers but should not be implemented by employees without the employer’s consent. We encourage employees to rather speak to their employers about their concerns.

  1. May employees be required to work from home?

Yes.  Working from home may be permitted in the discretion of the employer.  This is not always viable but could be considered in a corporate environment.  Should employers consider this option, we recommend that clear guidelines be set for employees.  This may include that the working environment must be safe, the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance of the office.

  1. May an employee’s professional or personal travel plans be restricted?

Professional travel plans may be changed or prohibited.  However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or weekends. Employers may, however, require their employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees or customers.

  1. As an employer, what are my obligations?

The Occupational Health and Safety Act 85 of 1993 (“OHSA“), requires an employer to bring about and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees.  For this reason, we recommend that employers adopt contingency plans and communicate with its employees regarding the measures it will adopt in securing the workplace.  This may include –

  • the prohibition of handshakes or physical contact;
  • limitation on meetings;
  • sufficient supply of hand sanitizer; or
  • requiring employees to work from home, should they feel sick in any way.

It may also be necessary to relax the sick leave policy or to permit more flexibility in working arrangements.

  1. As an employee, what are my obligations?

The employee and the employer share the responsibility for health in the workplace. Therefore both the employee and employer must pro-actively identify dangers and develop control measures to make the workplace safe.  For this reason, employees should abide by any policies adopted by the employer to curb the spread of the Coronavirus.  Employees should also inform their employer if they are aware of any risk to the health of their colleagues.

  1. Practical Tips

The following practical tips may be considered:

14.1  The prohibition of unnecessary meetings and the increased use of video conferencing facilities.

14.2  The prohibition of any form of physical contact, specifically hugs and handshakes.

14.3  Requiring employees to report to their manager if they feel unwell in order to possibly allow that employee to work from home.

14.4  Requiring employees to disclose if they have travelled to a high-risk area recently.

14.5  A rule that requires employees to wash their hands regularly.

*The answers to these questions are always subject to the specific facts of each matter and we recommend that you contact an employment law expert for advice applicable to your facts.

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South Africa’s marriage systems are as varied as our cultures.

This has been recognised by our courts and the legislature, particularly in terms of the Recognition of Customary Marriages Act 120 of 1998.

Subject to complying with the following, Customary Marriages are recognised as valid and legal and subject to Inheritance and Divorce Laws :

1.The marriage must be negotiated, entered into or celebrated in accordance with customary law. This means that the marriage must be entered into in line with the traditions and customs of the parties.

2.The parties who are getting married must be 18 years or older. If one or more of the parties are minors (below the age of 18 years), both his/her parents or legal guardian must give consent to the marriage.

3.The parties must also be competent to marry each other, meaning that they must not be blood relatives. For example, a brother and sister are not allowed to marry each other.

4.Both parties’ consent is required for the marriage to be valid. A person who cannot give consent, such as a mentally insane person, will not be able to get married.

5.The marriage must be lawful.

  • The payment of lobolo is not a specific requirement in terms of the Act, but it is considered to be part of practice when concluding a customary marriage.
  • There is a duty on parties in a customary marriage to register the marriage within three months after the conclusion of the marriage at the Department of Home Affairs.
  • If the registering officer is satisfied that a valid customary marriage has come into existence, the customary marriage will be registered and the parties will be provided with a registration certificate.
  • This registration certificate will be proof of the existence of the customary marriage and may avoid disputes that might occur in the future.
  • The Act allows a person to have more than one marriage with different persons at the same time (polygamous marriages). Polygamous marriages can only be legal if all the marriages are customary marriages. A person is not allowed to have a customary marriage and a civil marriage at the same time with different parties; however, a couple who is married with each other in terms of customary law, may enter into a civil marriage with each other as well.

For any advice on your marital regime or the consequences of marriage please contact our offices on 031 003 0630 or email Liza@schwenninc.co.za.

 

When selling, buying and transferring property from the seller’s name to the purchaser’s name the legal term used for the transfer process from owner to owner is called conveyancing.

The transfer of property is mainly done by conveyancers (attorneys who specialize in property who are appointed to administer the transfer process). It takes one to properly understand the conveyancing/ transfer process and making sure that all the required documents are in order from the beginning of the process till transfer and registration of the property under the purchaser’s name.

  1. Parties involved in the transfer process.

1.1.      Seller                                                              1.6.      Bond Registration Attorneys

1.2.      Purchaser                                                     1.7.      Bank

1.3.      Seller’s Attorneys                                         1.8.      Municipality

1.4.      Purchaser’s Attorneys                                1.9.      SARS

1.5.      Bond Cancellation Attorneys                    1.10    Deeds Office

 

The following are steps that will take place during the transfer process:

  1. The signing of the offer to purchase.

Before the transferring process commences and whenever a sale is to take place between two parties an offer to purchase and an acceptance must be made. The Seller and the Purchaser are required to sign an offer to purchase which is then sent to the Seller’s attorneys. The Purchaser’s Attorneys will then request for FICA documents from the Seller and the Purchaser to make an application for a bond at the bank. FICA documents will include a copy of ID document (SA Citizens) / Passport (Foreign Nationals) Proof of residential address less than three months old (for example utility bill, store account statement, bank document with residential address, DSTV account, municipal letter).

 

  1. The signing of the sale agreement and bond approval.

Upon signing of the sale agreement the Purchaser is required to pay a deposit into the transferring attorney’s trust account which is held until registration is finalized. The bank will then approve the bond on behalf of the Purchaser.

 

  1. Cancellation of the existing bond and registration of the new bond.

The existing bond cancellation under the Seller’s name takes place and registration of the new bond on the Purchaser’s name takes place. Registration of the new bond is done by bond registration attorneys. The bond cancellation attorneys have the duty to send a copy of the title deed and cancellation figures to the transferring attorneys for the Purchaser’s attorneys to issue guarantees to cancel the existing bond. Property guarantees provide assurance in transactions involving the sale of fixed property, and/or in agreements to provide finance against the security of a mortgage bond over the fixed property.

 

  1. The signing of transfer and bond documents.

The transferring attorneys have the duty to draft the transferring documents and get both the Seller and the Purchaser to sign the documents. The bond registration attorney also has the duty to draft bond documents and have the Purchaser to sign the documents and make payment for the bond registration ‘bond registration fees’.

 

  1. Requesting of figures from the municipality.

The transferring attorneys will request figures from the municipality to make sure that all the Seller’s rates and taxes are paid in accordance and are up to date before a clearance certificate is lodged with the Deeds Office.

 

 

  1. Payment of transfer duty.

Transfer duty is a levy or tax applied whenever you sell, buy or transfer property. Transfer duty is paying by the person acquiring the property (Purchaser), within six months of the date of acquisition.

 

  1. Lodging of transfer documents at the Deeds Office

Once the transfer duty has been paid the transferring attorney is required to lodge all documents together with the new bond and old bond cancellation at Deeds Office which is a government department responsible for the registration, management and maintenance of the property registry in South Africa.

 

  1. Registration of the property.

If the Deeds Office is satisfied and has approved all documents lodged the property then is registered in the new owner’s name which might approximately take 8-10 working days provided there are no changes. The rights of ownership of the property will then vest upon the purchaser as the new rightful owner of the property.

It might seem like a long and exhausting process to go through but it’s worth the sweat of a brow to a successful sale and owning of a new property. Should you find yourself in a position of selling or buying property kindly let us handle the transfer process on your behalf by contacting our offices SCHWENN INC @ 031 003 0630 or send an email to Charmaine Schwenn @ charmaine@schwenninc.co.za.

 

Written By: Portia Dlamini