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NEW COMMERCIAL COURT FOR BUSINESS DISPUTES

The Commercial Court has been revived in the Gauteng Division of the High Court of South Africa.

Although the court was established 15 years ago, it was never fully operational. The court aims at resolving company disputes faster and more efficiently and will consider any case that has a commercial transaction and/or relationship as its foundation. The claim made must, however, arise from or relate to the following:

  1. the export or import of goods;
  2. the carriage of goods by land, sea, air or pipeline;
  3. the exploitation of oil and gas reserves or other natural resources that do not involve Administrative Law;
  4. insurance and reinsurance;
  5. banking and financial services;
  6. the operation of markets and exchanges;
  7. the purchase and sale of commodities;
  8. medical scheme matters;
  9. commercial matters arising out of business rescue and insolvency cases;
  10. all commercial matters affecting companies arising out of the Companies Act 71 of 2008 and its interpretation;
  11. arbitration;
  12. delictual cases that take place in a commercial context for, e.g. unlawful competition cases;
  13. generally, appropriate contractual matters; and
  14. intellectual property cases.

Although the court is only available in Gauteng for now, it is hoped that similar courts will be established in other High Courts in the future to help alleviate the backlog experienced with many court rolls.

Visit https://www.businessinsider.co.za/sa-now-has-a-commercial-court-again-this-is-how-it-will-work-2018-10

For professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

CAN I HAVE PETS IN A RESIDENTIAL COMPLEX?

“I never married because there was no need. I have three pets at home which answer the same purpose as a husband. I have a dog which growls every morning, a parrot which swears all afternoon, and a cat that comes home late at night” (Marie Corelli, English novelist)

Residential complexes and estates are becoming more and more popular for the many advantages they provide. Remember however that – in everyone’s interests – they also come with restrictions on your freedom to use and enjoy your property, and that you bind yourself to whatever Conduct Rules apply in your community scheme.

One of those restrictions is likely to be your right to keep a pet, and that’s a topic that can be a source of much conflict and unhappiness.

Residents tend to fall into one of three camps

  1. “I really need to have my little dog/cat/parrot/lizard living with me”
  2. “I simply cannot handle any more of that parrot-screeching/lapdog-yapping/midnight-cat-yowling – it has to go!” or
  3. “Pets – don’t need them myself but hey, fine so long as they don’t cause me any trouble”.

Regardless of which category you fall into, it’s important to understand before you move into any form of residential complex whether or not you and other residents are allowed to keep pets, and to obtain any necessary prior authority to do so.

Sellers, buyers and estate agents would do well to address this specifically in sale agreements to avoid disappointment and dispute down the line.

Sectional title schemes

Your Body Corporate has the right to impose limits on pet ownership. It can for example prohibit pets altogether, or it can impose limits on the number of pets allowed, types of pet, breeds or sizes allowed, access to common areas, noise-control, replacement on the pet’s death and so on. Trustees should take care here to define clearly what is allowed and what isn’t. Are only dogs banned or also cats and cage birds? What about pet pigs? Guide dogs? Hamsters? Pet snakes? Goldfish? The more detail the better.

You need to find out exactly what rules apply in your particular complex, but the standard “Prescribed Conduct Rule” below will be in force unless your Body Corporate has amended it. This Rule reads –

“Keeping of animals, reptiles and birds

  1. The owner or occupier of a section must not, without the trustees’ written consent, which must not be unreasonably withheld, keep an animal, reptile or bird in a section or on the common property.
  2. An owner or occupier suffering from a disability and who reasonably requires a guide, hearing or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property.
  3. The trustees may provide for any reasonable condition in regard to the keeping of an animal, reptile or bird in a section or on the common property.
  4. The trustees may withdraw any consent if the owner or occupier of a section breaches any condition imposed in terms of sub-rule (3).”

Note that where this Prescribed Rule applies unamended, the body corporate is specifically required to act “reasonably” in all the circumstances of each matter. That entails a delicate balancing act between the competing rights of pet-owning residents and their neighbours, which means grey areas and fertile ground for dispute.

Hence the advice to get clarity on your rights before buying into a complex.

Home Owners Associations (HOAs)

HOAs have similar rights to restrict the keeping of pets, but no “Prescribed Rules” apply as they do with sectional title and their powers will depend on whatever founding documentation underlies them. HOAs normally govern free-standing estate houses rather than apartments and so are perhaps more likely to be pet-friendly but again, find out what the complex’s Rules say before you buy.

Trustees barking up the wrong tree? Polly ruffling feathers? The ADR alternative

If you find yourself embroiled in a dispute with your body corporate/HOA or a fellow resident or owner, first prize will of course always be a chat over a friendly cup of coffee to find common ground and a win-win outcome.

If that fails, the (relatively) new Community Schemes Ombud Service provides an alternate dispute resolution (ADR) service designed to assist with just this sort of situation. Contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800 for help in any doubt.

Credit: LawDotNews

AGING EMPLOYEES : WHEN MUST THEY RETIRE?

“Retirement at sixty-five is ridiculous. When I was sixty-five I still had pimples” (Comedian George Burns)

Record numbers of Baby Boomers are now reaching their 60s, and if you are an employer in any size of business (from the smallest family-owned enterprise to the largest corporate), make sure now that you have a policy in place to handle the thorny question of compulsory retirement.

This is vital – sooner or later you are going to have an employee turning 55 or 60 or 65, and if you think you can just say “Happy Birthday Kim, time for you to retire, see you around” you are in for big trouble.

So what’s the legally required retirement age?

The problem is that nothing in our law imposes a standard retirement age on employees. So trying to force someone to retire at an age that you unilaterally choose (no matter how much you may think that 65 is the universally-accepted gold standard for being put out to pasture) opens you up to a claim for ‘age discrimination’. And that would amount to an automatically unfair dismissal, for which our courts will make you pay dearly.

What our law does say is that “a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity” (our emphasis).

Let’s look at each of those options

“Agreed”: Clearly your best course of action is to have a written agreement with every employee specifying a compulsory retirement date. Ideally have such a clause in every new employment contract, and if any existing contracts have no such clause, negotiate one now (it’s essential to do this bilaterally not unilaterally – see case below).

“Normal”: You can always try to convince a court that you have, through past practice in your business, established a “normal” retirement age. You will have to prove that you have consistently applied this age in previous retirement situations and that the employee in question was aware of it. Far safer of course is to have in place a formal “retirement policy”.

Whatever you do, don’t act unilaterally

A recent Labour Court case shows how dangerous it can be to try to alter any term of employment without negotiating and agreeing it with your employees –

An employee’s employment contract made no direct mention of a compulsory or automatic retirement age, but his employer’s ‘Human Resources Policy and Procedure Manual’, which was incorporated into and formed part of his contract, stipulated a retirement age of 65.

This was reduced to 60 when the Manual was replaced by a “Terms and Conditions of Employment” policy. The new policy excluded employees “expressly entitled to retire at 65 in terms of their individual contracts of employment”.

The employee’s services were terminated when he turned 60 and he approached the Labour Court for assistance.

The Court held that the employer is “not permitted to unilaterally amend terms and conditions contractually agreed to” and was therefore in breach of contract. The employer must now reinstate the employee retrospectively to the date of termination, his compulsory retirement age being confirmed at 65.

What to do when retirement age is reached

Preferably your employment contracts should specify an agreed procedure to be followed on retirement date, but in any event don’t let the date just float past. Rather, if you agree on an extension period, have your lawyer draw up an amended employment contract to avoid any uncertainty or dispute.

Employees – know your rights

Age discrimination is just one form of automatically unfair discrimination prohibited by law. Stand up for your rights if you think you are being discriminated against, directly or indirectly, “on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

Credit: LawDotNews

For assistance and more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800.

Attorneys, Notaries and Conveyancers

At Goldberg & de Villiers Inc, we proudly offer our clients that state-of-the-art, up to date approach to business and legal services, whilst always keeping our clients’ specific needs as our main focus. With us, experience and innovation go hand in hand, so clients feel comfortable entrusting their business to the firm – knowing the team can offer them the best of both worlds.

It is this unique combination of trusted experience and modern flexibility that makes Goldberg & de Villiers Inc the choice of such a variety of discerning clients, from one-man businesses to multinational listed companies. Since our inception in 1933, our commitment to personal service, practical advice and tailor-made proactive solutions has earned us a stellar reputation in our field.

Our clients include a wide range of top national and regional businesses, national and international insurance companies, various local authorities and parastatals, leading financial institutions and private banks.

In today’s world of techno-acceleration and competitive trends, it is easy to lose sight of the traditional values of yesteryear. At Goldberg & de Villiers Inc we offer our clients the best of both worlds: a solid reputation for personal service excellence, a flexible, contemporary approach to maximising your results and a tradition of excellence.

You’ll find us at Pembridge House, 13 Bird Street, Central, Port Elizabeth.

It’ll be our pleasure to do your business!