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What constitutes gross negligence?

It is vital that companies understand the difference between negligence and gross negligence as this could be the difference at an enquiry of being in a position to find an employee guilty of the charge.

Negligence has been described as a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person.  The test therefore for negligence is whether a reasonable person in the position of the employee concerned would have foreseen the harm resulting from the act or omissions and would have taken steps to guard against that harm.

In a practical situation, this would read as follows:  “did the production manager foresee the harm of him failing to ensure quality checks were carried out hourly and failed to take steps to guard against that harm”.

Gross negligence is said to have occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself.

Case law has described gross negligence as including an attitude or state of mind characterised by an entire failure to give consideration to the consequences of one’s actions, in other words, an attitude of reckless disregard of such consequences.  It is thus a conscious and voluntary disregard of the need to use reasonable care.

Whilst disciplinary action is normally taken against employees for negligence only if they have caused damage or loss, the case authorities are clear that potential loss is sufficient in finding an employee guilty of negligence or gross negligence, depending on the circumstances.

Going into an enquiry, it is wise to charge the employee with alternative charges relating to negligence.  This would thus read gross negligence in the alternative negligence.

For more information relating to the correct manner in which to charge employees and conducting enquiries, please do not hesitate to contact Tracey Mouton on 041 501 9832 or traceym@goldlaw.co.za.

Do property owners have an unlimited right to develop their property to the full extent provided by the zoning scheme?

Property owners may have the perception that they can develop their property to its full extent as long as they comply with the parameters provided by the zoning scheme and other legal restrictions such as title deed restrictions. The perception exists that any building erected within the permitted legal parameters is one that neighbours are obliged to tolerate and that they cannot object to building plans that comply with all the legal requirements.

This perception or understanding is at odds with the provisions of the National Building Regulations and Building Standards Act 103 of 1977 (the Act) as construed by the Constitutional Court.

Guidance may be obtained from a recent judgment in the matter of Da Cruz and another v City of Cape Town and another[2017] 1 All SA 890 (WCC) where the Western Cape High Court ruled that this notion that a property owner may develop its property to the maximum extent permitted by a zoning scheme regardless of the nature of the adverse effect on the utility of its neighbour’s property is inconsistent with the provisions of the Act and it also runs counter to the precepts of the common law. The court found that the moderating principle in the regulation of neighbour relations in the common law is reasonableness.

In this matter the court clarified that the building control officer must follow a two phased approach in approving building plans. It should firstly be determined if the building plans comply with all legal requirements. i.e. comply with the zoning scheme etc. and if so, a further assessment should be conducted in terms of section 7(1)(b)(ii) of the Act to assess whether the building is to be erected in such manner or will be of such nature or appearance that the area in which it is to be erected will probably or in fact be disfigured thereby; it will probably or in fact be unsightly or objectionable; it will probably or in fact derogate from the value of adjoining or neighbouring properties; it will probably or in fact be dangerous to life or property. The court referred to this second phase as a contextual assessment of the effect of any building development on the neighbouring properties.

In the matter before the court, the owner of building A obtained approval to extend building A with further storeys that would be flush with the walls of the neighbouring building B.  This was entirely in line with the zoning and legal building parameters.

Building B contained residential apartments with balconies. The construction to building A changed the character of the balconies into small courtyards confined between towering walls. The owner of building B objected to the higher levels of building A built flush up against the balconies. The grounds of objection included the ground that the construction was so exceptionally intrusive and objectionable that it would not reasonably have been foreseen by any notional purchaser of an affected unit in building B. It was also contended that the balconies were previously approved and that a “reasonable notional purchaser and seller of a unit with balconies would never expect that the City having approved those balconies – would then approve a building on the next property which has the effect of rendering those balconies entirely useless”.

The court found that the zoning scheme is not, of itself, dispositive of what may be built on a land unit, and that a statutorily prescribed contextual assessment of the effect of any building development on the neighbouring properties should prevent a building that was unreasonably intrusive, overbearing or otherwise unsightly or objectionable from being erected. Know your rights!

For advice or assistance contact our professional team on Tel 041 5019800.

DIRECTOR, THE BUCK STOPS WITH YOU

The new Companies Act of 2008 rings in an era in which directors are substantially more exposed to possible personal liability for company losses.

This may happen when a director:

  • fails to act with the required care, skill and diligence that is required of someone at that level;
  • does not disclose personal financial interests;
  • abuses his/her position to gain a personal advantage;
  • does not act in good faith or in the company’s best interests;
  • trades under insolvent conditions; or
  • approves financial statements that are materially false or misleading

to name but a few examples.

For advice on this and related topics, including induction training for directors and how to make your board of directors more effective contact Cindy Jonker who heads up the commercial and corporate law department at Goldberg & de Villiers on (041) 501 9806 / cindy@goldlaw.co.za.

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!