In order for sick leave to be granted on the back of a medical certificate, the medical certificate is to accord to Section 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa.  In this regard, for there to be a valid certificate it must contain the following:

  1. The name, address and qualifications of the practitioner;
  2. The name of the patient;
  3. The employment number of the employee (if required);
  4. The date and time of the examination;
  5. An explanation by the medical practitioner stating whether the medical certificate is issued under the opinion of the medical practitioner’s personal or professional obligations deduced from an examination or if the patient provided them with information that is based on adequate medical grounds;
  6. A description of the illness, disorder or disease is to be provided in a manner understandable by those not in the medical professions.  Instances where the patient does not wish for their ailment to be stated, the medical practitioner or dentist is to simply specify that it is their opinion, after conducting examination, that the patient or employee is not fit to work;
  7. The patient or employee is completely unable to perform their duties or that such employee may remain within the work place as they are still able to perform less vigorous duties;
  8. The exact time frame of the recommended sick leave;
  9. The date on which the medical certificate of illness was issue; and
  10. The full details of the medical practitioner together with his signature.

When it comes to medical certificates obtained at Clinics, there is a tendency of these certificates not being signed by a registered practitioner.  However, it must be understood that all clinics as well as hospitals consist of a team of qualified medical practitioners or staff.  A person claiming to be ill and subsequently attending a Clinic or Hospital, has to be examined by such qualified practitioner and obtain an adequate medical certificate for employment purposes. 

Examinations that have been conducted by nurses or persons who are not qualified to perform examinations with the purpose of providing a diagnosis are not acceptable.  Therefore, a medical certificate is to be provided and clearly signed by a person who is certified and a qualified medical practitioner.

A medical certificate that is provided by a person who does not fall under the category of qualified medical practitioners, although granted the authority to conduct such examinations, is deemed as not being a valid medical certificate thus being unacceptable.

It is thus essential that an employee or patient that attends a clinic is to ensure that the medical certificate that he/she receives is valid and signed by a qualified medical practitioner and is not merely an attendance certificate.  Should it be the latter, it would not form part of sick leave and the employee could receive unpaid leave.

The following are reasons that do not constitute valid reasons to invoke an employee’s entitlement to sick leave:

  1. Routine check-ups;
  2. Examinations;
  3. Tests;
  4. Visits to Optometrists, Gynaecologists and Physiotherapists, etc.;
  5. Collecting of medicine from the pharmacy; and
  6. Visits to specialist medical practitioners.

Credit: Lungie Luvuno, Candidate Attorney within Goldberg & De Viliers Inc., Human Resources and Labour Law Department.

For information please contact Tracey Mouton, Director, Goldberg & de Villiers Inc – | (041) 501 9818.


You put your property on the market and an acceptable but not-perfect offer comes in. On the “a bird in the hand is worth two in the bush” principle you want to accept the offer even though it’s not ideal.

Perhaps it’s not perfect because it’s subject to a suspensive condition – common ones give the buyer time to sell his/her current house or to obtain a bond. In both scenarios your sale will fall through if the buyer is unsuccessful within the stated time, and if that happens you are back to square one after a long and fruitless delay. Bear in mind that that delay could be a protracted one depending on what your sale agreement actually provides – normally no less than 30 days to get a bond, sometimes several months to sell an existing house. That’s a lot of very valuable marketing time lost – and you’ll never know for sure whether you just missed out on that “perfect offer”.

The “72-hour clause” and what it does

This is where the “72-hour”, “continued marketing” or “escape” clause comes in handy.

In a nutshell, it allows you to continue marketing your property until suspensive conditions are met. If your marketing pays off and an unconditional offer does come in, you can give your existing buyer 72 hours’ notice to match it. So the buyer would have an opportunity to make the sale unconditional – either by waiving (abandoning) the condition or by fulfilling it.

If the buyer fails to do whatever the clause requires within the 72 hours, you are clear to accept the new offer. If on the other hand the buyer does perform in time, the existing sale immediately becomes fully binding and the transfer process can get underway.

A note for buyers

The clause is usually there for the seller’s benefit so perhaps avoid it when you can. But if it’s a choice between your offer being accepted or not, bear in mind that having a signed sale agreement at least gives you a solid base for a full bond application and/or a concerted effort to finalise your own house sale.

Just be ready to react quickly if the seller does indeed give you the 72 hour notice – you don’t want to be rushing around in a last-minute panic.

Buyers and sellers – check the wording!

Although 72-hour clauses are common in standard sale agreements, the exact wording can vary substantially, and may need tailoring to meet your specific needs. You might for example want to be given proof of availability of funds together with a bond clause waiver, or proof that the sale of the buyer’s house is a viable one – every situation will be different.

Apart from everything else, make sure that –

•           The 72 hour period specifically excludes Saturdays, Sundays and Public Holidays (religious holidays too if important to you),

•           You can extend the 72 hours by mutual agreement if you want to,

•           There are clear requirements for the method and timing of giving notice and of waiving conditions, and

•           You aren’t binding yourself to anything else that could turn around and bite you down the line.

Delete the clause if it doesn’t apply.

Please feel free to contact any of the conveyancers in the Property Law Department at Goldberg & de Villiers Inc Attorneys –; and for more information.


As an estate agent you will know that without a valid Fidelity Fund Certificate (FFC) you are not entitled to any commission for the successful sales or leases you put together. All your hard work in fulfilling your mandate will come to naught. Your client need pay you nothing.

As a recent High Court case warns, you will also be unable to enforce any restraints of trade you enter into with your employees. And that’s a major risk if your trade secrets are as valuable to you as they are to most agencies.

The company that converted from a CC without changing its FFC

•             The agency’s fatal mistake was that for 5 years after the conversion it continued to hold FFCs in the CC’s name. During that period it employed an intern agent in terms of an Intern Agency Agreement which included a restraint of trade clause prohibiting the employee “from engaging or participating in the property industry for a period of six (6) months after the termination of the agreement”.

•             A close corporation (CC) trading as an estate agency held an FFC.

•             When the intern agent resigned and joined another agency, the company approached the High Court for an order interdicting and restraining her “from utilising and/or communicating confidential information relating to its business affairs, property listings, pricing, valuations etc” and “from operating in any capacity in the residential property market” in a list of named suburbs for 6 months.

•             It converted to a company, retaining the same name so that the only change was the “CC” at the end of its name becoming “(Pty) Ltd”.

•             In the 18 months she had been with them, said the agency, she had “gained knowledge of valuable importance pertaining to the business of the [agency]. To that extent this matter was of cardinal importance to the [agency].”

•             The agency argued that the FFC issued to the CC should be deemed to have been issued to the company “because it is the ‘same’ entity”. Rejecting this, the Court said the FFC had been issued for 5 years to a different, non-existing entity. Moreover an agency must if operating in a corporate entity have separate FFCs for all its directors (if a company) or members (if a CC) in addition to its own.

•             Accordingly, said the Court, the company could not act as an estate agent and its internship agreement incorporating the restraint of trade was “null and void thus unenforceable”.

Check and double check that all your FFCs are in order and in the correct names. Change nothing in your holding structure without having a plan in place to update all your FFCs immediately.

A final thought for agencies

Take into account possible administrative delays, the Court here specifically warning that “It is not enough that the application is being processed or some other hiccup is in the process of being solved. The provisions are clear and peremptory.” Either you have a valid FFC in place at the critical time or you don’t.

For professional legal advice, contact Goldberg & de Villiers Inc on 041 5019800.

Credit : LawDotNews


This article is important to you if you are either a South African working abroad or an employer of one. If you don’t fall into either of those categories, but know someone who does, please think of passing this on.

As an employee earning foreign remuneration (salary, leave pay, bonuses, allowances, commission etc), you currently enjoy an uncapped tax exemption (on that remuneration only, not on other foreign income) provided that you work overseas –

  • For more than a total of 183 days during any 12 month period, and
  • More than 60 of those days are consecutive.

That however is set to change from 1 March 2020, when only the first R1m p.a. of your earnings will be exempt – you will pay tax on anything over that. With the Rand’s weakness showing little sign of abating, a lot of expats and their employers are going to be affected.

Are you a “tax resident”?

Only “tax residents” are affected, so the first thing you should establish is whether you are still a tax resident or not. That’s not always easy, so take professional advice in any doubt.

To illustrate some of the complexities involved, both physical emigration/relocation and “financial emigration” are different concepts to “tax emigration”. Moreover the Income Tax Act’s tests for tax residency are hardly a model of clarity – you are a “resident for tax purposes” if you are either an “ordinary resident” or a resident in terms of the “physical presence test” –

  1. You are, says SARS, an “ordinary resident” if South Africa is the country to which you “will naturally and as a matter of course return after [your] wanderings’, your “usual or principal residence”, or your “real home”.
  2. Even if you aren’t an “ordinary resident”, you will still be a resident under the “physical presence test” if you are physically present in South Africa for more than –
  3. “91 days in total during the year of assessment under consideration; and
  4. 91 days in total during each of the five years of assessment preceding the year of assessment under consideration; and
  5. 915 days in total during those five preceding years of assessment.”

Under the physical presence test however if you are outside the country for a continuous period of at least 330 days you are not regarded as a tax resident.

Should you “tax emigrate”?

If you are indeed a tax resident, don’t think of changing that status without taking full advice. “Tax emigration” and “financial emigration” are complicated processes and full of pitfalls. For example you could be entitled to foreign tax rebates or other relief on your taxable (i.e. +R1m) foreign earnings, or there may be other benefits to remaining a tax resident. So it is important to have an expert look at your specific situation and determine what is best for you overall.

The big thing is to be aware that change is coming. Some long-range planning is the only way to be certain that there are no unpleasant surprises waiting to spring out on you down the line.

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

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The most important element to grasp when dealing with matters that are based on negligence or gross negligence is to understand the meaning of each term and the manner in which an offence for each comes into existence.

Negligence is the failure to fulfil the standard of care that ought to be exercised by a reasonable person during certain events or under certain circumstances. The standard of care to be taken is one that would prevent injury or loss to another person or entity.

The offence of negligence is determined through the reasonable person test which entails asking the question of whether a reasonable person who is placed in a certain position would have foreseen that harm would result if certain acts were conducted or omitted.

However the most important aspect to look at is whether the alleged guilty party truly failed to take the steps that a reasonable person would have taken to guard against imminent harm.

An example of negligence would be when an investigator fails to conduct the proper checks and balances of keeping persons away from a crime scene when conducting an investigation.

The question is did such investigating officer foresee that, through their failure to conduct the necessary checks and balances, harm in the form of a contaminated crime scene would be the result.

Gross Negligence is a much more serious offence than negligence and may have extremely unfavourable consequences. An act or omission is seen as being grossly negligent when a person relentlessly acts in a manner that is negligent. It also applies in instances where the persons’ act or omission is of an extremely serious nature.

Legally, gross negligence has been recognised as an inclination or mind set of total, reckless and harmful disregard a person has towards their actions and the consequences that may arise from such act or omission.

Therefore, where gross negligence is deemed to be the form of error that occurred the duty to apply reasonable care where due ought to have evidently been voluntarily as well as consciously disregarded.

An example of gross negligence would be where an employee who foresees the fact that the vehicle they are driving is losing power and cannot be controlled adequately, reconciles with themselves and continue driving such vehicle up a steep hill where the likelihood of such vehicle coming to a sudden halt at an incline is very high resulting in it rolling back onto vehicles behind it.

A further question to ask is whether such reasonable person would have taken the necessary actions to prevent the harm that was foreseen by them. Therefore the elements of negligence and gross negligence must be applied accordingly to each set of facts per matter.

A glimpse into the courts

In the case of FAWU obo Maphutha / Eskort Ltd 2011 4 BALR (CCMA) (hereinafter referred to as the FAWU case) Mr Maphutha was dismissed from his position of employment as Engine Room Operator due to the allegation of gross negligence.

The facts behind his dismissal were that the employee had not switched on the machinery during a particular night shift which resulted in the substantial loss of production time as well as wasted costs for the company.

The employee stated that he had emphatically attempted to start the machinery and to make telephonic contact with the relevant supervisors to inform them of the problem he was facing regarding the machinery.

The employee thus put it forward that his actions were not negligent as he attempted to switch the machinery on as well as make contact with the relevant superior.

The company stated that the employee was not supposed to attempt to fix the water problem but to contact his superior.

The commissioner overseeing the matter acknowledged the fact that the employee did make contact with the company electrician, who in return advised the employee upon leaving the premises to contact the foreman or the production manager should the problem continue which was not done by the employee.

A further observation was made with regards to contact being made to the relevant superiors by the employee in that the employee completely failed to contact the maintenance manager, who was contactable for 24 hours a day, of which no explanation was provided by the employee as to why he failed to contact the maintenance manager.

The commissioner held that had the employee contacted the maintenance manager there would have not been a substantial loss of production time and costs. Therefore through these actions he acted irresponsibly.

The commissioner brought to light the fact that employers, according to employment principals, have the right to set reasonable standards within their workplace and that they may require that their employees work in accordance to such reasonable standards.

Therefore during instances where an employee holds a position of trust, where specific actions or omissions that are negligent bring about dire consequences for the employer, such relationship of trust is undermined where an employee fails to apply due diligence and a standard of care.

The investigation into an alleged negligence allegation is not to necessarily look into the employee’s rebelliousness but to look at such employee’s lacklustre attitude toward the standard of care that accompanied the detrimental act or omission.

An employee may be deemed as being fairly dismissed on the grounds of negligence when such employee fulfils the requirements of failing to adhere to a standard of care and skill that is reasonably expected of them.

The commissioner further describes that in order for an employee to be held as being grossly negligent to the point where a single act or omission conducted at first instance could result in dismissal such employee would have to:

1.    Untiringly not fulfil a certain duty or task,

2.    The employees act or omission would have to have been of an extremely serious and or unpardonable nature,

3.    The consequences of the act or omission are dire,

4.    Where an employee is in an employment position where an act or omission would result in serious consequences especially if such act or omission is negligent, and

5.    Where an employee possesses or claims to hold specialised skills and or experience fails to apply such skills and experience to a detrimental point.

The employee in the FAWU case was dismissed for gross negligence as it was evidential that they did not attempt to telephonically make contact with the manager as they ought to have done.

The result of such failure was a substantive loss on the company’s side. The fact that Mr Maphutha failed to contact the manager for assistance was the crux of the matter as it indicates that he did not follow procedure and not the fact that he failed to start the machinery within the plant.

Therefore the commissioner held that the sanction of dismissal was fair in this matter as Mr Maphutha’s failure to contact the relevant manager for assistance cannot be seen as the actions of a reasonable person.

The key points to consider for a fair dismissal based on negligence are that the employee failed to exercise the standard or level of care and skill that can reasonably be expected of such employee.

Therefore it is extremely important to identify, consider and be able to differentiate the elements of negligence and gross negligence as it may have an enormous impact on an outcome to a matter of negligence or gross negligence.

Should you wish to obtain further information regarding this topic please contact Goldberg & de Villiers Inc, Pembridge House, Bird Street, Port Elizabeth on 041 5019800. Email



There are many advantages to buying in a security estate or other community scheme, including quality of life and increased potential for growth in your property’s value.

As a buyer just be aware that you will almost certainly be binding yourself to a set of rules and regulations imposed by the Homeowners Association (HOA) or Sectional Title Body Corporate. Check that you are happy with them before you sign anything! Our courts have regularly confirmed the general principle that you are bound by what you agree to, and a recent high-profile Supreme Court of Appeal (SCA) decision provides an interesting example.

HOAs and Bodies Corporate on the other hand will be particularly pleased with the outcome, the High Court having originally held that the speed limit rules imposed by the estate in question were an unlawful attempt to usurp State powers over public roads and therefore invalid.

Speeding fines in a golf estate

  • A large golf estate (comprising some 890 freehold and sectional title properties with extensive common areas and facilities) is serviced by a network of roads and pathways. It has imposed a speed limit of 40km/h on its roads, with penalties for speeding.
  • A property owner was fined R3,000 for his daughter’s repeated speeding contraventions, but he refused to pay, and the dispute has since then been grinding its way through the courts.
  • The High Court originally held the speed limit rule to be invalid on the grounds that the estate’s roads were “public roads”.
  • But the SCA overturned this ruling, holding that the estate is a “private township” and its roads are (and were from inception) “private roads”. The “general public” has no right to access the estate’s roads, admission being restricted by electrified perimeter fencing and strict control at gated access points to owners, tenants, employees, guests, invitees and other “duly authorised persons”.
  • Even if the roads had been “public”, said the Court, owners had voluntarily agreed to bind themselves contractually to use the estate’s roads subject to the conduct rules. And because invitees are only allowed into the estate with the owner’s prior consent, the rule making the owner responsible for any breach by them of the rules is valid.
  • Moreover, the estate’s imposition of a speed limit is not unreasonable, especially given the presence of children, pedestrians and animals (wild and domestic) in the estate.

The end result – the estate’s speed limit is valid, it is entitled to impose penalties for breaches, and the owner must pay his daughter’s speeding fines together with some (no doubt substantial) legal costs.

For professional legal advice, contact Goldberg & de Villiers Inc on 041 5019800.

Credit: LawDotNews


In these days of online banking and electronic payment, it’s not uncommon to find out to your horror that you have made a payment to someone in error, either to the wrong recipient or in an incorrect amount. If that happens to you and the recipient refuses to pay you back, what can you do about it?

The other side of the coin of course is whether the recipient of an unexplained and unexpected bank account credit can safely go ahead and spend the windfall (the answer in a nutshell is very strong “no” – if there are indeed any free lunches in the world, this is unlikely to be one of them!).

A recent High Court judgment sets out the requirements for a claim based on “unjustified enrichment”.

A banking app duplicates payments of R861,940

  • A couple were the happy beneficiaries of a malfunction in their bank’s “remote banking” app.
  • In effect they received duplicate transfers into their two accounts totalling R861,940
  • The bank duly sued them for return of the money on the basis that they had been “unjustifiably enriched” at its expense.
  • Initially the couple denied that any duplication had taken place, but at trial they dropped their denial, claiming instead to have repaid the bank in cash.
  • The husband’s story was that he had paid a bank employee, since deceased, who had put the cash into a safe “in case a claim was made”. He was unable to say how much money had been handed over, he could not give dates, and no receipts were requested or given. Nevertheless his evidence was accepted by the trial court and the bank’s claim failed.
  • However on appeal to a “full bench” (a “full court” of three High Court judges, sometimes more), the husband’s version was rejected as “inherently improbable”, and the couple was ordered to repay the bank together with interest and legal costs.

What must you prove?

The requirements for an unjustified enrichment claim are –

  1. The recipient has in fact been enriched by receiving the money (it needn’t be money, it could for example be an asset of some sort)
  2. You have been “impoverished” by the transfer
  3. The recipient’s enrichment was at your expense
  4. The enrichment was legally unjustified.

Once the couple admitted receiving the money without a legal basis, held the Court, the onus shifted to them to prove that there was no enrichment. So their failure to prove repayment was the end of their case.

Don’t despair if the facts of your case don’t tie in fully with the above requirements – our law may have other remedies for you.  Speak to the professional legal team at Goldberg & de Villiers Inc for more information. They can be contacted on 041 5019800.



The monetary jurisdiction of Small Claims Courts has been increased from R15,000 to R20,000 from 1 April 2019.

Not all claims can be pursued in a Small Claims Court –

  • Claims over R20,000 must be pursued in the ordinary courts (you can if you like reduce a larger claim to the R20k to avoid having to do that).
  • Only individuals can sue in a Small Claims Court, i.e. not companies, close corporations etc.
  • The State and local authorities can only be sued in the ordinary courts. Other than those exclusions, you can sue anyone including companies and the like.
  • Certain types of claim (such as divorce matters, some damages claims, interdicts, will disputes etc) must also go to the ordinary courts.

Even if your claim qualifies for the Small Claims Court, think of asking your lawyer for guidance on whether it is your best course of action. Sometimes even seemingly minor claims can have wide ramifications, and there is no substitute for professional advice! Contact the legal team at Goldberg & de Villiers Inc on 041 5019800.

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Effective 11 March 2019, there is a new provision in the court rules that enables debtors to rescind their High Court judgements without having to show good cause.

Prior to 11 March 2019:

A person against whom a judgement had been granted in the High Court would need to apply to court and prove good cause for having such judgement rescinded. This required a debtor to prove:

  • a reasonable explanation for the default;
  • that the application for rescission is bona fide and not made with the mere intention to delay the claim against the debtor;
  • that the debtor has a bona fide defence to the claim.

The mere subsequent settlement of a judgement debt would not constitute a cause for setting aside a lawfully issued judgement.

Effective 11 March 2019:

In terms of the Courts of Law Amendment Act No. 7 of 2017, section 23A was inserted into the rules to specifically provide for rescission of judgement with either written consent of the judgement creditor, alternatively where the judgement debt has been paid in full by the judgement debtor, irrespective of whether or not the judgement creditor has consented to the rescission of judgement. In the latter instance, the application for rescission:

  • Must be made on a form that corresponds substantially with the form prescribed in the rules;
  • Must be accompanied by reasonable proof that the judgement debt, the interest thereon and the costs have been paid;
  • Must be accompanied by proof that the application has been served on the judgement creditor at least 10 business days prior to the hearing of the intended application;
  • May be set down for hearing on any day not less than 10 business days after service thereof; and
  • May be heard by a judge in chambers.

The court may make any cost order it deems fit with regard to such an application.

The aforesaid introduction of this new manner of rescinding judgements certainly is beneficial for debtors wishing to clear their records and does, in the writer’s view, fill a previous void in the rules pertaining to court judgements.

For professional legal advice and guidance, contact the Goldberg & de Villiers Inc. team on 041 – 501 9800.


AARTO (the Administrative Adjudication of Road Traffic Offences Act) has been partially in force for years, but its demerit provisions have been on ice for so long now that many of us have lost sight of just how seriously it will impact both ourselves as individuals, and our businesses.

Every individual and every business is at risk

Law-abiding motorists will no doubt welcome the crackdown on serial traffic offenders, but we also need to manage the risks.

Every motorist, every vehicle owner, every professional driver and every transport operator will be at serious risk of losing their licences/permits/operator cards.  Even businesses outside the transport sector will need to manage this – what happens if your sales people are grounded or your office staff can’t drive to work?

The wheels are turning fast now, with amendments to the Act at long last passed by Parliament, and set to come into law when signed by the President.

Will it be delayed yet again?

The demerit proposal has been bouncing around for a decade, with several false starts and there is talk of court challenges, plus the commencement date may or may not be delayed.

But at long last the wheels are definitely turning, and turning fast.

Be prepared!

Unlucky 13 – easier to reach than you thought

The demerit system is complicated, but in a nutshell you will in addition to paying a fine incur demerit points for a whole range of offences.

And anyone with 13 or more demerits will have their driver’s licence/professional driving permit/operator card automatically suspended (3 months’ suspension for every point over 12).  And 3 suspensions will result in full cancellation.

Don’t think that 13 demerits will necessarily take the average driver a long time to accumulate. Consider the demerit points applicable to some sample offences (there are many thousands of them – the table below gives just a few examples).

Sample offences and demerit points

Reducing demerit points, and discounts on fines

You are also rewarded for obeying the law –

  1. Any demerit points you have picked up are reduced by one point per 3 month period you remain offence-free.
  2. Early payment of fines will earn you a 50% discount. Set up a payment control system so you don’t miss payment deadlines.

Businesses and employers – manage your risks

Think now about how you will manage the risk of your employees (especially those employed as drivers) repeatedly offending –

  • How will you monitor your drivers’ demerit points? Although for many offences both driver and operator will incur demerits, some driver offences will apply to the driver only.
  • Are your employment contracts correctly structured to ensure you have access to your employees’ demerit points’ status? And to deal with the consequences if they have their licences suspended or cancelled?
  • Check your insurance policies – must you disclose any changes in your employees’ demerit status? Are you at risk of losing cover?

Credit: LawDotnews

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