MIND THE ‘GAP’ OF LESS THAN ONE YEAR

Did you know that, in terms of Section 84 of the Basic Conditions of Employment Act (BCEA), previous employment with the same employer is taken into account when calculating an employee’s length of service, if the break between the 2 periods is less than 1 year.

This becomes important when an employer determines an employee’s entitlement to leave or any payment to be made in terms of the BCEA.

For more information, contact Tracey Mouton at Goldberg & de Villiers Inc on 041 5019800.

 

WHEN ARE EMPLOYEES ENTITLED TO FAMILY RESPONSIBILITIY LEAVE

The Basic Conditions of Employment Act stipulates that an employee is entitled to Family Leave Responsibility when an employee’s child is born, when an employee’s child is sick, or upon the death of the employee’s spouse/life partner, or the employee’s parent, adoptive parent, grandparent, adopted child, grandchild or sibling.

An employee is only entitled to FRL of 3 days per year. This entitlement would only accrue to employees in the employ of the employer for longer than 4 months and who work for more than 4 days per week.

An employee is entitled to request the employee to submit proof of the event which requires FRL.

FRL does not accrue and as such does not carry over into the next year.

For more information, contact our team of experts at Goldberg & de Villiers Inc on 041 5019800.

NEW ONLINE BUSINESS REGISTRATION PORTAL LAUNCHED

The Minister of Trade and Industry, Ebrahim Patel, attended the launch on the 4th November 2019 of the pilot phase of a new online business registration portal, “Biz Portal”, aimed at enabling entrepreneurs to register a business within a day in South Africa.

For more information follow this link:

https://businesslink.co.za/biz-portal-new-online-business-registration-portal-launched/business/?utm_source=Ricochet+Publishing&utm_campaign=369e2cd360-EMAIL_CAMPAIGN_2019_11_05_09_20&utm_medium=email&utm_term=0_d70cfd1b5e-369e2cd360-45529079

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

“SELLER’S REMORSE” and “SUBJECT TO SALE OF THE BUYER’S PROPERTY”

“If you don’t like where you are, move. You are not a tree” (Jim Rohn)

The upcoming festive season, with its mass migrations of happy holiday-makers to their dream destinations, has always been a busy time for both sellers and buyers.

In these hard times however, an increasing number of sellers are feeling pressured to accept offers well under their expectations, so cases of “seller’s remorse” are much more likely now than they have been for many years. The question is, just how easy or difficult is it for a seller to escape a sale agreement signed in haste?

Equally common no doubt are sales “subject to the sale of the buyer’s property” – for a specified amount and within a specified time period. That raises an important question – must the buyer’s transfer actually be registered in the Deeds Office within the deadline period, or is enough that the buyer has signed a sale agreement for his/her property?

A recent High Court decision addressed both those questions, as well as two others relating to defences raised by a seller who changed her mind shortly after accepting the buyer’s offer (the judgment doesn’t say why she changed her mind, but the fact that a bank offered the buyers a bond of R3.9m suggests that the sale price of R2.6m may have been very low).

A serious case of seller’s remorse, and the 3 defences raised

In the case in question the seller had second thoughts shortly after accepting a R2.6m offer for her house from a couple who were married in community of property. When the seller then refused to pass transfer to the buyers, they asked the High Court to order her to do so.

Any one of the three defences put forward by the seller to the buyer’s claim could have sunk the sale, so let’s have a look at how the Court answered the three main questions they raised –

Does “subject to successful sale of the buyer’s house” require transfer?

The sale was subject to the “successful sale” of the buyers’ property within 60 days, failing which the sale would lapse. The buyers had indeed “sold” their house by entering into a sale agreement for it, and their buyers had taken occupation. But, so the seller argued, that was not a “successful sale” because actual Deeds Office transfer hadn’t been registered within the 60 day period.

Bad defence, ruled the Court, commenting: “I cannot think for a moment that the parties had the intention that the [buyers] were to find a purchaser for the property, that they had to sign a deed of sale after a purchaser was found, that possible suspensive conditions in that deed had to be fulfilled, and that the registration of transfer into the purchaser’s name, all had to take place within the limited period of 60 days only … I therefore find that the phrase ‘successful sale’ in the present agreement means nothing more than the successful signing of a deed of sale” (emphasis added).

On a practical note, both seller and buyer in any property sale should have their attorneys confirm that the “subject to” clause specifies clearly what exactly is required. Is a signed sale agreement enough? Must all suspensive conditions have been met? Or must actual transfer have been registered? Provide enough time for your agreed requirements to be met, and cover scenarios like an unexpected glitch or delay in the buyer’s transfer (neither buyer nor seller wants to be in the position where a buyer can’t pay the purchase price when transfer is eventually tendered).

As a less important side note, the sale in this case was also subject to another suspensive condition. This was a “bond clause” requiring the buyers to obtain a bond within 30 days – which clause, held the Court, had been fulfilled by a bank informing the buyers in writing that their application for a mortgage loan was approved for a total amount of R 3.9m, well over the required R2.6m.

Married in community of property – must both spouses sign?

The buyers being married in community of property, the seller argued that the sale agreement was invalid because only one spouse had signed it. Not so, held the Court, “both husband and wife have equal capacity to perform juristic acts and equal powers to manage the joint estate, which powers can in most cases be exercised without the consent of the other spouse”.

The Court found that this was not a case requiring such written consent (there are conflicting court decisions on this point so ask your attorney for specific advice if this question arises in your sale*), therefore the signing spouse “had full capacity to bind the joint estate by signing the Offer to Purchase without the written consent of the Second Applicant”.

*(Best practice of course is to avoid any possibility of dispute by getting both signatures wherever possible!)

Must acceptance of an offer be communicated to the buyer?

The seller claimed to have called her estate agent 30 minutes after signing the agreement, instructing her to withdraw it and terminating her mandate as agent. Thus, argued the seller, the acceptance of the offer was never validly communicated to the buyer and no contract ever came into existence.

Not so, held the Court. Although our law is that “unless the contrary is established, a contract comes into being when the acceptance of the offer is brought to the notice of the offeror”, no communication of acceptance was necessary in this particular case. The offer was headed “Offer to Purchase (This constitutes an Agreement of Sale upon Acceptance by the Seller)” and it stated that “the Seller agrees to sell the immovable property, together with the improvements thereon, to the Purchaser whom purchases from the Seller on the terms and conditions as set out in this Agreement.”

The unavoidable inference, said the Court, was that the parties intended “that the mode of acceptance would be the signature of the First Respondent, and nothing more.”

“Sign in haste, repent at leisure”

Our law as a general rule holds you to your agreements, so sign a sale agreement and you will have an uphill battle getting out of it.

As always speak to your attorney before you sign anything. Proper advice upfront is the best way to avoid seller’s remorse (and buyer’s remorse for that matter), grey areas that risk dispute and litigation, and uncertainty over whether your rights are properly protected in the sale agreement.

Credit: LawDotNews

For more information, contact Goldberg & de Villiers Inc on 041 5019800.

 

ARE SOCIAL MEDIA POSTS PRIVATE?

In employment, it is important to understand whether an Employer may lawfully access Facebook or other social media platforms of their employees.

 

If so, the further question arises as to whether the Regulation and Interception of Communications Act (the Act) applies to social media.

The trend in case law is that there is nothing private about anything said on any social media pages. If you are tagged in, or if you post is shared, privacy does not exist and in essence your post has the potential to go viral.

In the case of Sedick and Another vs Krisray (Pty) Ltd (2011) 8 BALr 879 9 (CCMA), the court found that the abovementioned Act does not apply. The case explained that the Act only applies to private communications. As the employee had not restricted the privacy settings, the employee’s Facebook pages were open to all to see.

By not setting their privacy settings, the employees had abandoned their respective rights to privacy. The employees in this case were dismissed.

For more information, contact Tracey Mouton, Goldberg & de Villiers Inc on 041 5019800.

RESIGNATION IN THE FACE OF DISMISSAL

It happens that an employee resigns with immediate effect after being served with a notice to attend a disciplinary hearing.  The contract of employment however sets out that the employee may only resign on four weeks’ notice.

The question therefore arises as to whether it is possible to hold an employee to the notice period and still run an enquiry? The simple answer to the above is NO.

In the matter of Naidoo & Another v Standard Bank SA Ltd & Another (Labour Court Case No. J1177/19), the Court confirmed that when an employee resigns with immediate effect, the employer loses its disciplinary authority over the employee as such authority only extends to its employees.  Should the employer wish to continue with the enquiry, it must first approach the Court to obtain an order of specific performance; only when such an order has been granted may the employer proceed with the enquiry.

This case has far reaching consequences in industries which allow for the black-listing of dismissed employees.

For any queries in relation to the above please do not hesitate to contact Goldberg & De Villiers Inc, Tel (041) 5019800. E-mail traceym@goldlaw.co.za.

3 FREQUENTLY ASKED QUESTIONS REGARDING RESIGNATION

Although a well drafted contract of employment sets out when a contract of employment may be terminated, most contracts do not cater for the manner in which an employee is to resign.

The following questions arise:

Is a verbal resignation sufficient?

The Basic Conditions of Employment Act sets out that a resignation is to be in writing, unless the employee is illiterate. Case law however has set out that the test is in fact whether the employee has either, by his word or conduct, shown a clear and unambiguous intention not to go on with his contract of employment in that he has acted in a manner which has led a reasonable person to the conclusion that he did not intend to fulfil his part of the contract.

Must the resignation be accepted by the employer?

Not at all. A resignation is a unilateral act and as such does not require any acceptance by the employer party.

May a resignation be withdrawn by the employee?

The obvious answer is that, yes a resignation may be withdrawn. However, an employer does not have to accept the withdrawal of the resignation and as such the resignation would stand. Employers however must be weary of the resignation in anger and subsequent withdrawal. A failure to accept the withdrawal in such circumstances may lead to litigation.

For more information, contact our team of legal experts at Goldberg & de Villiers Inc on 041 501 9800.

SUPPLY OF ELECTRICITY IS IN ITSELF, NOT AN INCIDENT OF THE POSSESSION OF THE PROPERTY TO WHICH IT IS DELIVERED

The mandament van spolie (spoliation) is a remedy in our law, based upon the fundamental principle that persons should not be permitted to take the law into their own hands to seize property in possession of others without their consent.

Spoliation provides a remedy in such a situation by requiring the status quo preceding the dispossession to be restored by returning the property ‘as a preliminary to any enquiry or investigation into the merits of the dispute’ as to which of the parties is entitled to possession.

As a result, a court hearing a spoliation application does not require proof of a claimant’s existing right to property, as opposed to their possession of it, to grant relief. A spoliation order is thus no more than a precursor to action over the merits of the dispute.

The Supreme Court of Appeal recently analysed the principles applicable to spoliation proceedings in the case of Eskom Holdings SOC Limited versus Nomajapan Masinda[1].

In the matter, Eskom disconnected the supply of electricity to property owned by and in possession of a consumer. The consumer applied successfully for an urgent spoliation order, and Eskom appealed against this decision. Eskom contended that the connection made from its grid to the consumer’s property was illegal and a danger to the public. For this reason, it asserted that it had acted lawfully in disconnecting the supply.

The consumer contended that the lawfulness or otherwise of the dispute was not an issue and that the supply had to be reconnected where after the parties could determine its legality.

It was held by the Supreme Court of Appeal that the mere existence of such a supply is, in itself, insufficient to establish a right constituting an incident of possession of the property to which it is delivered.

To justify a spoliation order, the right must be of such a nature that it vests in the person in possession of the property as an incident of their possession. The obvious examples that come to mind are rights bestowed by servitude, registration or statute.

In contrast, rights that flow from a contractual nexus between the parties are insufficient as they are purely personal and a spoliation order, in effect, would amount to an order of specific performance in proceedings in which a respondent is precluded from disproving the merits of the applicant’s claim for possession.

Judge Leach expressed a view that previous cases which held that such supply is in itself an incident of the possession of the property to which it is delivered, should be regarded as having been wrongly decided.

[1] Eskom Holdings SOC Limited v Masinda [2019]  JOL 44966 (SCA)

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

 

 

NEW PRESCRIBED RATE OF INTEREST

The prescribed rate of interest has dropped from 10.25% to 10% per annum, effective from 1 September 2019.

 In accordance with the provisions of the Prescribed Rate of Interest Act, the interest on debts is calculated at the repo rate plus 3.5%, unless a different rate is prescribed by law, trade custom or agreement between the parties. Thus, parties can agree to a different rate of interest, but would need to be mindful of other applicable legislation which may place limitations in this regard.

 Be sure to check that the correct interest rate is being applied to your transaction and, if in doubt, contact Goldberg & de Villiers for expert legal guidance on 041 – 501 9800.

 

IS YOUR COMPANY POPIA COMPLIANT?

With the implementation of the Protection of Personal Information Act, 4 of 2013 (“POPIA”) looming, it is crucial to determine whether your Company is POPIA complaint.

The crux of POPIA

 

There are broadly four aspects of POPIA that need to be considered in order to determine whether your Company is required to be POPIA complaint and whether it is in fact complaint therewith. The four aspects of POPIA that need to be considered include:

  1. Is the information being processed Personal Information in terms of the definition of Personal Information in section 1 of POPIA?
  2. Is consent of the Data Subject required for such processing and if so, has it been obtained in terms of section 11 of POPIA?
  3. Has the Personal Information been collected directly from the Data Subject or are the exceptions contained in section 12 applicable?
  4. The Data Subject must be informed of, inter alia, the purpose of the collection of the Personal Information unless the exceptions in terms of section 18(4) are applicable.

Although all Companies will have one year after POPIA comes into force to ensure that they are complaint therewith, it is advisable to now already determine whether your Company is non-compliant with POPIA in order that the necessary measures can be put in place to ensure that once POPIA comes into effect your Company is complaint.

These are just a few important aspects regarding the application and import of POPIA that need to be considered.

Should you require further information on POPIA or to determine whether your Company is complaint therewith or any related aspects, please feel free to contact Goldberg & de Villiers’ Corporate and Commercial Law Department on 041 501 9806 for personalized corporate and commercial law advice.