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.

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.

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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The rights of an employee or employer come from many sources and one of the main sources as with many other laws come from Common law.

South Africa’s Common law is a mixture of Roman-Dutch law and English law. These sources have in turn been formalised by Legislation like the Basic Conditions of Employment Act, the Labour Relationship Act and others.

However, as times have changed so have our laws and with the many amendments to the Labour Relations Act as well as the Basic Conditions of Employment Act employers and employees may become confused on what are their most pivotal duties and rights are in respect of employment.

Here are some tips for you:

The Employee’s Duties:

  1. Services: An employee must make his/her services available to the employer within an agreed period of time. The actual services rendered will often be specifically described within the employment contract and the job specifications and requirements, however, oftentimes an employee’s services will include those duties that aren’t specifically described but are within the best interest of the business.
  2. Competence: An employee must act in accordance with their skills for which they were hired for. When undertaking to exercise that skill, an employee must do so with due diligence, and if not, that employee will be considered incompetent for the job.
  3. Good Faith: So much of the employer-employee relationship is based on the moral character of the employee. That relationship is built on honesty and moral conduct. An employee must act in accordance with what is in the best interests of the business instead of that of his/her own interests and for that reason misappropriation, misconduct and dishonesty cannot be tolerated.
  4. Subordination: This is an employee’s obligation to obey the employer’s commands. These commands, however, must be lawful and morally sound. An employee shouldn’t accept an order that makes him/her go against their moral character.

The Employers Duties:

  1. Remuneration: As discussed above, an employee will provide the employer with services in exchange for remuneration. This give and take relationship will continue in accordance with the employment contract and only in very rare circumstances will remuneration be withheld which will usually be due to a breach of the employment contract. However, even after summarily dismissing an employee an employer needs to follow the correct procedure according to the Code of Good Practice, Basic Conditions of Employment Act and the Labour Relations Act.
  2. Safe Working Environment: An employer must provide a reasonably safe working environment for his/her employees and according to Common law, the employer is delictually liable for any damages and injuries of an on-site or work-related accident.
  3. Provisions for Leave: According to the Labour Relations Act as well as the Basic Conditions of Employment Act an employer must grant his/her employee with vocational leave, family responsibility leave and sick leave (this will, however, vary from contract to contract between the parties).

An employment contract is an agreement between two parties (employer and employee) who hold themselves liable for the obligations as discussed, described and agreed to within that contract or agreement.

 

For more advice on your rights and obligations and any other labour related query contact our offices today at Charmaine@schwenninc.co.za or call us on 031 003 0630.

It’s that time of year where everyone is burnt out, getting sick and generally just trying to plan their holidays.  Do you understand your employment contract and how much leave you are entitled to?

Annual Leave

Let’s take a look at the types of leave an employee is afforded according to South African law:

 

 

Annual Leave:

According to the Employment Equity Act, an employee must be working more than 14 hours a month to be entitled to leave. A leave cycle is a period of 12 months during which you are entitled to 21 consecutive days of off with full remuneration. This is equal to  15 working days leave if you work a 5-day working week and 18 working days leave if you work a 6-day working week. You are entitled to roughly 1.25 days leave a month per cycle.

Should an employee not take their leave within 6 months after the end of the annual leave cycle then the employer cannot refuse to give the employee permission to take leave unless this has been agreed otherwise in their contract of employment.

 

Sick Leave:

Sick leave is a total of six weeks in every three-year cycle which is calculated from the first day of employment. For an employee who has a five-day working week this would equal 30 days full paid leave. However, during the first six months of employment, the employee is only entitled to take one-day sick leave for every 26 days worked. If you do not take your sick leave within that cycle you forfeit same.

If you are absent from work for more than two consecutive days then you have to produce a medical certificate to your employer.

 

Maternity Leave:

Maternity leave is for a period of four months and can start one month before the date of delivery of the baby. The employee legally cannot return to work for a period of six weeks after giving birth.

An employee must notify the employer in writing four weeks before the expected maternity leave commences and the date that they intend to return to work. During this leave, an Employer must keep that person’s job open for them to return. Your employer is not obliged to pay you during this time and you will be entitled to claim compensation from the Unemployment Insurance Fund.

 

Family Responsibility Leave:

Family responsibility leave is three days a year which is forfeited if not used within that year and is only available to employees who have worked for their employer longer then four months and work more then four days a week. Previously fathers were not afforded the same rights as mothers when their children were born but the new Labour Law Amendment Bill will since change same.

This type of leave can be taken when your child is born, sick or when a relative passes away, however, your employer may require proof that the event took place.

 

It is therefore important for employees to understand their rights with regards to their leave and their responsibility to follow the act as well as their employment contracts. If you have any questions regarding your employment contracts contact us today on 031 003 0630 or email us on info@schwenninc.co.za.

 

The holiday season can cause much unnecessary conflict between separated and divorced spouses or split families. Navigating the holidays can be a very emotional time, whether it is your first or your fifteenth Christmas, sharing your time with your children.

A good divorce settlement agreement or parenting plan should have clear and specific guidelines for the sharing of the holiday season.

Holiday seasons often include travel plans. If these are going to interfere with the dates that the other parent should spend with your children, make sure that they are aware of these dates and that you have their agreement in advance.

If you are travelling internationally, on top of valid passports you will need to ensure that you have sufficient written legal consent from the other parent who is not coming on holiday with you and the children. This needs to be attended to in advance and must comply with the requirements of South Africa and the country that you are entering.

Here are some tips on ensuring that your holiday season runs as smoothly as possible:

  1. Try to make your plans and reach an agreement as soon as possible – last minute plans often come up against resistance.
  2. Take into account your existing arrangement and your previous holiday season – who had the children for which periods last year.
  3. Stick to the plans that you have made – the other parent has made plans around this arrangement already.
  4. Check your emotions – your reactions will be dictated by heightened emotions over any special time like the holiday season.
  5. Remember that the interests of the children are paramount – it is about what is best for the children and the parents will take a back seat.
  6. Try not to let extended family and friends interfere as they are not part of the legal agreement that you have in place.
  7. Do not always expect one parent to compromise – it needs to be a two-way street.
  8. Keep lines of communication open particularly for emergency situations.
  9. Be considerate of your children and the other parent.

If you require any assistance in navigating an agreement, a divorce or a parenting plan please contact our offices.

Written by Liza Bagley contact number 031 003 0630 and email address Liza@schwenninc.co.za

It might happen that you have heard people talking about being insolvent and that their assets are sequestrated. This article will take you through the meaning of Insolvency for a person (NOT a company – that is Liquidation and will be covered in a later blog).  We will also discuss who a debtor is for the purposes of insolvency, the purpose of a sequestration order and who may be sequestrated.

Meaning of: “Insolvency”

A person is insolvent when his liabilities exceed his/her assets. Inability to pay debt is, at most, merely evidence of insolvency.

A person who has insufficient assets to discharge his/her liabilities, although satisfying the test of insolvency, is not treated as insolvent for legal purposes unless his/her estate has been sequestrated by an order of the court.

A sequestration order is a formal declaration by the High Court that a he/she is insolvent.  The order is granted either when he/she voluntarily surrenders their estate or where one or more of his/her creditors apply for compulsory sequestration.  The person in this circumstances is referred to as a debtor (someone who owes money to creditor(s)).

Who can be regarded as a “debtor”?

The term “debtor” is technically wider than just a single person.  It embraces the following:

  • A natural person
  • A partnership
  • A deceased person
  • A person incapable of managing his own affairs
  • An entity or association of persons that is not a juristic person, such as a trust
  • Parties married in Community of Property

The purpose of a sequestration order

The order of sequestration is made by the High Court to secure the orderly and equitable distribution of a debtor’s assets where they are insufficient to meet the claims of all his creditors. A sequestration order is issued by court to execute property belonging to a debtor in order to for the creditors to be paid which in some cases one or a few creditors are being paid, and the rest receiving little or nothing at all. However, the law takes its cause to ascertain that whatever assets the debtor has are liquidated and distributed among all his creditors in accordance with a predetermined fair order of preference.

Once an order of sequestration is granted, a coming together of creditors is established, and the interests of the creditors as a group enjoy preference over the interests of individual creditors.

A creditor’s right recover his claim in full by judicial proceedings is replaced with the right, on proving a claim against the insolvent estate, to share with all other proved creditors in the proceeds of the estate assets.

Apart from what is permitted by the Act, nothing may be done which would diminish the assets of the estate or prejudice the rights of creditors.

The law of insolvency exist primarily for the benefit of the creditors, thus a court will not sequestrate a debtor’s estate unless it’s known that the sequestration will be to the benefit of the creditors. Thus a sequestration order would not be granted if there is only one small creditor or if the debtor’s assets are not sufficient to cover the costs of sequestration, and so the creditors of the debtor would then have to seek individual relief against the debtor by taking judgment against him for nonpayment of debts.  The concept of sequestration being to the benefit of creditors means that each creditor must benefit – receive some dividend from the sequestration order being made.

What may be sequestrated?

Estates that fall with the meaning of the word “estate” with regard to insolvency:

  • An estate that includes assets and liabilities
  • An estate that consists of liabilities only
  • The joint estate of spouses married in community of property
  • The separate estates of spouses married out of community of property
  • The new estate of a debtor whose estate has been sequestrated.

Written by Portia Dlamini