Tuesday, July 11, 2023

The relationship between an employer and employee is one of reciprocation in that the employee performs work or services for the employer under certain conditions in exchange for remuneration.

In certain instances, the period of employment will be fixed. This is where, for example, a permanent employee has gone on maternity leave and another employee has been appointed in their place on a fixed-term contract.

In terms of our law, an employee may not be appointed on a fixed-term contract to perform the functions of a permanent employee unless certain conditions exist.

In other circumstances, the period of employment will be indefinite, and the employee will be expected to work indefinitely until the employment relationship is terminated by either party or the retirement age is reached.

The employment relationship may be terminated by either party with the employee usually terminating the relationship by resignation or the employer terminating the relationship due to misconduct or other reasons on the part of the employee.

However, it may also be so that the employee terminates the employment relationship due to the employer making the continued employment relationship intolerable. In these circumstances, the employee will have a claim against the employer for what constitutes constructive dismissal.

The first test which must be passed in order to claim constructive dismissal as laid out by our legislature is that there must have been no other motive for the resignation by the employee. In other words, had it not been for the unacceptable conduct on behalf of the employer, the employee would have continued their employment indefinitely.

The onus of proof rests on the employee in these instances to evidence that the employer was responsible for creating the intolerable conditions and that resignation from the position was the only available option.

In the Labour Appeal Court matter of Pretoria Society for the Care of the Retarded v Loots it was held that the Court would look at the employer’s conduct as a whole in determining whether its effect is such that it renders the continued working relationship intolerable.

The matter of Coetzer v The Citizen Newspaper, and Kruger v CCMA & Another, reiterated that constructive dismissal is to be determined objectively and that resignation must be the last resort.

Some instances of constructive dismissal of South Africa have been the following: - Suspension of an employee without pay after the employer experiences financial difficulties; - The employer’s unilateral reduction of an employee’s salary; - Demotion as a result of a restructuring exercise; - Unfair disciplinary action taken against the employee may amount to a constructive dismissal.

In the matter of Pretoria Society for the Care of the Retarded v Loots it was held that a constructive dismissal had taken place where the employer had rendered the working environment intolerable for the employee by, among other things, “throwing the book at her, finding her guilty of matters for which she could not be held responsible, humiliating her by publishing the news of her final written warning to the parents of inmates, and depriving her of keys.”

It appears as though in cases of constructive dismissal, the onus of proof rests on the employee, and as such it is important that the employee well documents all instances of unfair treatment which would amount to constructive dismissal.

If you are able to prove constructive dismissal from your employment, you will be able to claim damages from your employer.

If you are an employee and you find yourself in a situation where you feel that you are being constructively dismissed, we urge you to make contact with our offices today and speak with one of our dedicated legal professionals.

If you are an employer facing a situation where disciplinary action is necessitated against an employee, we ask that you contact our office for guidance as to how to take the appropriate steps.

author : Rebecca Stassen

Monday, July 3, 2023

Why is having a last Will and Testament so important? A valid Last Will and Testament ensures that your assets and personal possessions are divided up among those individuals you want to inherit them. Without a legally valid document setting this out, your estate won't necessarily be bequeathed according to your wishes. Your wishes about who should inherit what is being carried out depends on having a valid and up-to-date Will.

What happens if you die without a Will? In South Africa, we can legally choose how an estate plan will be executed after we are gone. This all hinges on a legally valid Last Will and Testament. Without one, our legal system does have laws in place that allow a person's estate to be divided among remaining relatives - namely a spouse and children, or even siblings and parents (where there is no spouse or children).In some instances, extended family members may benefit from a person's estate if there is no immediate living family member, such as a spouse, child, parent or sibling. In this instance, the legal system will assess extended family in terms of relationship degrees and consider relations such as aunts and uncles.

While there are legal provisions in place to manage the assets and possessions that a person without a will leaves behind, problems can arise that make the process a little more difficult.

Aside from assets you would have preferred to be inherited by someone specific being handed over to someone else, other challenges of an intestate scenario include: · A lengthy process to appoint an appropriate Executor (who can also end up being someone who you would not have chosen while alive). · Additional fees and costs - these can quickly add up and become significant. · Confusion, frustration or even conflict among remaining loved ones who do not have a clear outline of what you would have wanted. · Without a Will, you cannot set up a trust to receive assets or cash on behalf of minors. Cash will then end up going to the Guardian's Fund. · Without a Will, you cannot nominate a guardian for your minor children both parents die at the same time. · Without a Will, you cannot distribute offshore assets.

Many South Africans continue to live their lives underestimating the value of having a will in place. Understanding its importance, as well as the potential repercussions - for example, administering an estate in terms of the Intestate Succession Act can be somewhat costly, lengthy, and emotionally intense.

What do you need to draft a valid Will? Before drafting a Will, you must think carefully about certain details. In this document, your wishes will become final so they must be clear and well thought out.

You must be sure about things like who will get what, who the legal guardian for minor children under the age of 18 will be; and who you choose to manage your estate as the Executor.

You can choose a spouse if suitably qualified or even your legal adviser. You can even select two individuals, for instance your spouse, as well as naming your lawyer as a co-executor who can assist your loved one with legal matters.

There will be other specific personal details to be considered before drafting or even revising an existing Will. For instance, if you have gone through a divorce, you must amend your will within three months. If you haven't done this, a former spouse can still inherit according to the last Will deemed valid by our country's legal system.

The legal requirements for drafting a valid Will are tricky. Although any mentally competent individual from the age of 16 can draft a valid Will, the signing requirements in the Wills Act 7 of 1953 are technical and easy to get wrong.

It is therefore a good idea to have your Attorney assist with the drafting process. That way he or she can ensure that all legal requirements of the Wills Act 7 of 1953 are sufficiently met.

Requirements for a Will to be valid include: · A Will must be in writing (audio and video statements are not valid). · Two witnesses must be present during the signing process and must be older than fourteen. · Witnesses must not be mentioned as beneficiaries in any way in the will. · Every page of the will must be initialed, with the last page being signed in full. This must be done in the presence of the selected witnesses. · The witnesses must also initial each page and sign the final page of the will.

In the Will, a person should appoint an Executor. This is the person's whose responsibility it will be to ensure that all of your property, possessions and other assets are divided according to your wishes.

The Executor also has the right to make certain decisions regarding the estate after any outstanding debts have been settled. For instance, if there are shares in the estate, will they be sold or passed on to the heirs.

You can store these files and your will in a secure safe at home or at a wills storage provider such as the law firm whereby you have executed your will. It merely needs to be in a safe place that can be accessed if changes are required to be made or when the time comes for your wishes to be executed.

If you or someone you know would like further information or assistance with estate planning, feel free to contact our offices today to have your valid Last Will and Testament drafted.

author : Zara Zakiyah Kara

Monday, June 19, 2023

Landlord, as well as tenant rights in South Africa, are governed by the common law, as well as by statute. This means that irrespective of whether there is a contract is entered into setting out the obligations between the parties, certain obligations are placed on the landlord and tenant automatically.

This does not mean however that a landlord and tenant should not enter into a written agreement setting out the terms of their agreement, as it is always best for the agreement to be reduced to writing and signed by both parties to ensure they are both aware of their rights and obligations.

For example, the following are obligations placed on a tenant by virtue of the common law: 1. The tenant is obligated to pay the full amount of rental to the landlord at the proper date and time as agreed between the parties. 2. The tenant is obliged to look after the property and maintain it in the condition it was received until such time as the lease is terminated and to utilize the property for its intended purpose.

The Rental Housing Act and the Rental Housing Amendment Act are the key pieces of legislation which not only regulates the relationship between landlord and tenant by setting out the rights and responsibilities between the parties but also sets out what should be contained in a lease agreement as well as the termination or cancellation of a lease agreement.

Usually, the landlord will request a deposit from the tenant. Such a deposit is to be held in a Trust account for the benefit of the tenant and on termination of the lease agreement, the deposit should be refunded with interest to the tenant, provided the property is restored to the landlord in the condition it was received.

The parties must perform a joint incoming and outgoing inspection of the property to record the condition of the property prior to occupation and upon termination of the agreement any damages caused to the property may be deducted from the deposit received. These damages include any rental outstanding, lost keys, physical damage to the property, etc. Once the outgoing inspection has been concluded, the landlord must refund the deposit, to the tenant within seven days. However, should there be damages caused by the tenant, the deposit must be refunded to the tenant less the damage caused within fourteen days.

The tenant is obliged to: - Attend the incoming and outgoing inspection, - Take care of the property and return it to the landlord in the same condition it was received, - Make payment of the rental owing in accordance with the agreement entered into whether written or oral and not request that the deposit be utilized for any outstanding rental monies owing.

The tenant has the rights to: - Receive a receipt for all monies paid to the landlord, - Receive a rental invoice setting out a breakdown of the costs of the rental, and - Rental may not be increased during the period of the agreement.

Usually, a lease agreement will be concluded for a fixed-term period and is not indefinite. Therefore, the tenant has certainty that rental will not increase during the period of the agreement. Upon expiry of the agreement, the same landlord and tenant may elect to enter into another agreement and the landlord may elect to then increase the rental owing.

This proviso that the rental may not be increased during the fixed-term has the following exception: The landlord is entitled to increase the tenant contribution to municipal rates and taxes if the lease agreement specifically provides for this.

The tenant is obliged to provide the landlord with twenty business days’ notice and will be liable for a reasonable cancellation penalty. Should a dispute arise between the parties, the tenant may refer the dispute to the Rental Housing Tribunal.

There are many economic benefits to a landlord in renting out a property. However, the landlord should pay special attention to the following when entering into an agreement with a tenant:

1. We are presently in a situation in our country whereby electricity charges may increase. Provision should be made in the written agreement for these increases.

2. We are presently in a drought and various penalties are being levied to municipal account holders. Provision should be made in the written agreement for these increases.

3. Although common law and statutory law govern the relationship between tenant and landlord, it is always best to ensure that a written lease agreement is concluded which clearly sets out the rights and obligations of the parties.

4. In the event that the tenant refuses to make payment of rental, a landlord cannot resort to self-help such as changing the locks of the property or cutting-off the water and electricity. This is illegal. Instead, the landlord will need to enter into eviction proceedings which can prove to be both costly and time-consuming.

If you are planning to rent out your property, we encourage you to seek assistance from our offices in preparing the lease agreement. Our dedicated conveyancing department is ready and able to assist. Further, if your tenant may need to be evicted, our offices can provide guidance on the correct procedures to follow.

author : Rebecca Stassen

Monday, June 12, 2023

Being involved in a Road Accident is an unexpected and frightening experience. This terrible experienced can be ever-so more frightening when an injury is sustained or a loved one is lost. The Road Accident Fund provides compulsory cover to all road users within South Africa for injuries which are caused by or arise from the negligent driving of a motor vehicle within the borders of South Africa. The Fund provides personal insurance cover to victims of Road Accidents or their families and provides indemnity to wrongdoers.

This means that if you are injured in a motor vehicle accident in South Africa, you may have a claim for compensation from the Road Accident Fund for certain expenses such as past medical expenses, future medical expenses, past loss of earning, future loss of earnings and general damages.

However, in order to qualify for compensation, one needs to meet the threshold test for injuries. Essentially, the injuries must qualify as substantially serious to qualify. For example, one cannot claim from The Road Accident Fund for what qualify as minor injuries such as a broken toe.

To claim from the Road Accident Fund, a claim must be lodged within either three years from the date of the accident where the identity of the driver is known and two years where the identity of the driver is unknown.

A claim can be lodged directly by the claimant with The Road Accident Fund but a claimant may also elect to utilize a firm such as Lessing, Heyns and Van Der Bank Inc. in order to claim. The benefits of claiming through our offices is that we have the necessary experience in dealing with the technicalities of the Fund with which claimants may not be familiar.

THE FOLLOWING IS THE RAF CLAIM PROCESS: After you have given an instruction to your legal representative and all necessary documentation has been signed by yourself, preparation for lodgement or “handing in” of the documents takes place.

Preparation for lodgement typically includes obtaining your hospital records, as well as the relevant accident report and/or docket in support of your claim. Your claim is then lodged with the Road Accident Fund at their offices which are situated in East London.

The Fund then has 120 days from when the claim is lodged, to investigate the claim, request outstanding documents and/or information from the legal representative, and make an offer as to damages.

Should the Road Accident Fund fail to make an offer within the 120 days, your legal representative has an obligation to serve summons on the Road Accident Fund, so as to protect your interests and speed-up the settlement of the claim. When Summons have been served on the Road Accident Fund after the 120 days, the Road Accident Fund will then defend the matter and will be compelled to serve their plea.

Once the Road Accident Fund serves your representative with their plea, the litigation process and preparation for trial commences. During this time, the pleadings become closed and a pre-trial is set, with the legal representatives for the Fund. The pre-trial conference is held and an application for a trial date is then lodged with the Registrar of the High Court.

It should be noted that it is not easy to get early dates for trial, and as such, pressure should be put on the Road Accident Fund to ensure that the Court Rules are adhered to as to ensure that there are no unnecessary delays to the claims. However, the time frame allows the legal representative to properly prepare on the merits and quantum(value) of each individual matter. Various experts assess the client for medico-legal reports, and these are used to determine quantum.

Once the court date has been set a litigation legal representative attends court and the matter is pushed for settlement. This means that your legal representative will attempt to negotiate with The Road Accident Fund for settlement of your claim as opposed to proceeding to trial which can be a lengthy process. The legal representative is to make sure that the offer made by the Road Accident Fund is reasonable. If it is of the opinion that the offer in unreasonable, a counteroffer is made to the Fund. Before settlement, all the details of the offer and fee agreement must be explained in detail to the client to their satisfaction.

Once the matter is settled, it must go to the finance department where a bill for the attorney and client together with party and party costs must be calculated.

“Party and party costs are the costs that the Road Accident Fund pays as a cost contribution to the attorneys’ fees and are usually ordered by the Court in favour of the client.”

Once the party and party bill of costs has been drawn up it must be served upon the Fund for taxation. From the date of taxation, it usually takes 180 days for the capital to be recovered from the Fund.

Claiming from the Road Accident Fund directly can be complex if you are not familiar with the requirements of the Road Accident Fund. Contact our offices should you require any assistance with your Road Accident Fund claim.