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May a resignation be withdrawn by the employee?

The obvious answer is that, yes a resignation may be withdrawn.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.

 

 

CAN YOUR BANK TAKE YOUR MONEY WITHOUT PERMISSION?

“A bank is a place that will lend you money if you can prove that you don’t need it” (Bob Hope)

A recent High Court decision has settled the knotty question of whether your bank can take money it holds for you in one account to cover your debt to it in another, without your permission and without notice to you.

Firstly, what is “set-off”?

To understand how important this new decision is, we need to go back to our common law (unwritten law) principle of set-off. In simple terms, common law set-off allows one debt to be cancelled out by another. So if for example I owe you R1,000 and you owe me R900, I am both your creditor and your debtor, and vice-versa. If we come to blows, I can then set the one debt off against the other with the net effect that I owe you R100.

Credit-lenders, and in particular banks, used to make extensive use of this to collect debt. If for instance you fell behind in your mortgage bond or credit card payments, your bank could, if it was so inclined, take the arrears out of your current account as soon as your salary was paid into it – without your consent and without notice to you.

Banks have always argued that this ability has made it easier for them to lend money to us when we ask for it, as it reduces their risk by giving them more security if things go wrong. Giving notice or asking for consent would, they argue, allow a recalcitrant debtor to quickly withdraw the funds and frustrate the debt collection. But the other side of the coin of course is that you could suddenly find yourself without money to live, let alone to service your other debt payments – a situation particularly hard on lower earners and those struggling with mountains of debt.

Enter the NCA (National Credit Act) in 2005…

How the NCA changed things

In broad terms, the NCA (when it applies – see next paragraph) restricts set-off in such a way as to give the consumer the right to choose whether or not to consent to set-off, which accounts it may be applied to, in respect of which amounts, when it is to be applied, and in respect of which debts.

But does the NCA apply to your particular debt? In most cases, yes. In a nutshell (there are some “ifs” and “buts” here so ask your lawyer for specific advice) the NCA applies to most personal loans, home loans, overdrafts, credit card debt, asset finance agreements, lease agreements and so on. It covers consumers who are individuals and some – not all – “juristic persons” (companies and the like – take advice for details).

Which brings us to the High Court…

Nevertheless at least one bank (which is unlikely to be alone in this practice) has continued until now to apply common law set-off without consent, in other words they would take money from a customer’s account to cover the customer’s debt on a separate credit agreement. The bank argued that the NCA’s set-off restrictions did not apply on its interpretation of the NCA, in its circumstances and to its credit agreements. Importantly, its agreements omitted any mention of set-off (where an agreement does mention set-off, there is no argument – the NCA restrictions definitely apply).

Having received complaints from consumers to this effect, the National Credit Regulator asked the High Court to interpret the NCA’s provisions and to rule on the legality of the bank’s practice.

The High Court’s decision

Common law set-off without your consent as above cannot happen if the NCA applies to your credit agreement.

In a nutshell – you have the choice! Banks and other credit-lenders must ask you before taking money from one account to cover your debts in another.

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

Credit: LawDotNews

DO IT YOURSELF ROAD ACCIDENT FUND CLAIMS!

What you need to keep in mind!

The Road Accident Fund (RAF) compensates for losses suffered due to bodily injuries or death as a result of a road accident.

Anybody who suffered any injury or financial loss as a result of a road accident and caused by the negligence of someone else may have a claim.

Dependants of a deceased victim may also lodge claims for loss of support and recovery of funeral expenses.

When a claimant is a minor and or a person incapable of conducting his or her affairs, the parent, legal guardian or curator will lodge a claim on the victim’s behalf.

You can claim directly from the Road Accident Fund (RAF), but if you do it yourself this is what you need to keep in mind about so-called “direct claims”:

  1. There are statutory time limits that apply to your claim and if you or the fund do not comply with these statutory time limits your claim will prescribe;
  2. Claiming from the RAF appears to be straightforward, but in practice, it is a complex process;
  3. Medical records need to be obtained from hospitals and doctors medical reports (RAF 1 and RAF 4) need to be completed by doctors, and paid for;
  4.  Documents need to be obtained from the South African Police Service, and paid for;
  5. An affidavit setting out the facts of how the accident took place must be prepared and lodged with your claim;
  6. Not equipped with the relevant know – how you will be required to quantify your claim by declaring in your claim form what you are claiming for various heads of damages such as pain and suffering, loss of amenities of life, disfigurement, disability and shock (general damages), loss of income, loss of earning capacity, future medical costs and past expenses (special damages);
  7. It is important to note that to be eligible to claim general damages for pain and suffering, loss of amenities of life, disability, disfigurement and shock you are required to obtain, pay for and lodge a serious injury assessment report (RAF 4) by a suitably qualified medical expert who has assessed your injury as ‘serious’;
  8. A proper assessment of the quantum of your damages can only take place once your injuries have stabilised, in some cases injuries may only stabilise after a passage of time;
  9. Injuries need to be thoroughly investigated by appropriately qualified medical specialists, and reports obtained and paid for;
  10. Compensation for loss of earnings and income need to be thoroughly investigated and calculated on the correct assumptions by a qualified actuary and reports need to be obtained and paid for;
  1. The acceptance of settlements without independent and competent advice and in the mistaken belief that it is the best possible outcome by victims could result in inadequate compensation;
  2. You are allowing the RAF autonomy to determine whether they owe you anything and determine how much they owe you;
  3. Once a matter is finalised, the RAF must make payment of the agreed amount or amount awarded. Regrettably, the RAF may need some encouragement to pay victims, and in this situation, it is not a bad idea to have an attorney in your corner to enforce the collection of the compensation due to you.

The better option is to let Goldberg & de Villiers Incorporated assist you with your claim.

We specialise in personal injury law and have the knowledge and experience to assist you with ensuring that your claim is calculated correctly and submitted to the RAF in line with the applicable legislation.

At Goldberg & de Villiers Incorporated, we are prepared to incur and carry reasonable costs to take legal action pending finalisation of your case against the Road Accident Fund if we believe that your claim would succeed.

Our role is to represent the client by advancing the claim on behalf of the client to ensure that the client receives just and fair compensation.

For the reasons set out above the decision to claim directly may prove to be a perilous journey for injured victims and the dependants of deceased victims. Your claim could lapse, in which case you will not receive any compensation. You also run the risk of an improper assessment of your injuries or calculation of the loss suffered, which will result in inadequate compensation.

Actionable advice

Our advice is to talk to Goldberg & de Villiers Incorporated before making a decision. Why embark on this unknown and rather complex process on your own. Put your mind at ease during the trying time and appoint one of our qualified and experienced attorneys to assist you with your claim for a better future. Goldberg & de Villiers Incorporated is an established firm with a track record of securing top awards and settlements. We specialise in RAF claims and have over 85 years of accumulated valuable know-how, expertise and skills to achieve top settlements and awards in RAF matters.

If you are a victim of a road accident or dependent of a victim/deceased and wish to submit a claim or instituting legal action against the RAF or have any concerns regarding a direct claim you have submitted to the RAF, please feel free to reach out to us for assistance on 041 5019800.

HOW TO DEAL WITH A DECEASED ESTATE

A deceased estate consists of all the assets and liabilities left behind at the death of a person. Administering a deceased estate involves finalising tax affairs and transferring and distributing assets to heirs after all debts have been settled. This process is regulated by the Administration of Estates Act and other laws and is overseen by the Master of the High Court.

HOW CAN WE ASSIST YOU

We can assist you in administering a deceased estate by:

  • Compiling and submitting all necessary documents to the Master of the High Court
  • Obtaining the letter of executorship/letter of authority
  • Complying with all the legal requirements of the Master of the High Court
  • finalising the tax affairs of the estate
  • attending to paying all debts and  transferring and distributing all assets to heirs

The administration of a deceased estate is a complex and specialised field. We will assist you with all the legal and administrative requirements so that the estate can be wound up as quickly and easily as possible. Contact the Estates Department at Goldberg & de Villiers Inc to assist you with the administration of deceased estates.

DOES YOUR TITLE DEED CONTAIN RESTRICTIVE CONDITIONS PREVENTING YOU FROM EXTENDING THE BUILDING ON YOUR PROPERTY OR USING IT FOR BUSINESS PURPOSES?

 

Restrictive conditions in a title deed take precedence over building plan approvals and land use right approvals. In other words, if your title deed contains restrictive conditions in conflict with the proposed use of a building in terms of a building plan the approval of such plan can be deferred until the restrictive condition has been removed from the title deed. This can be done by way of an application to the relevant authorities.

For further information or a quote on the application for the removal of restrictive title deed conditions please contact Goldberg & de Villiers’ Corporate and Commercial Law Department on 041 501 9806 or nicole@goldlaw.co.za.

HOW FAR DOES THE EMPLOYER’S LIABILITY TOWARDS ITS EMPLOYEES EXTEND IN RELATION TO HARASSMENT

Is it possible for an employer to be liable under the Employment Equity Act for utterances made by one of its customers towards its employees?

In this regard, the Employment Equity Act regulates situations of an employment relationship.  The liability therefore cannot be extended to customers acts of discrimination and/or harassment. 

Neither the CCMA nor the Labour Court has jurisdiction in this regard and an employee would not have a remedy against the employer.  His/her remedy would therefore lie within the Civil Courts or the Equality Court. 

For more information in this regard, please do not hesitate to contact Goldberg & De Villiers Inc., Human Resources & Labour Law Department, Telephone (041) 501 9818 and e-mail traceym@goldlaw.co.za.

DEVELOPERS ARE REQUIRED TO REGISTER HOMES BUILT FOR LEASE AND RENTAL PURPOSES

Developers and builders are generally aware of their obligations to both register and enrol an intended building project with the National Home Builders Registration Council (hereinafter referred as the “Council” created in terms of the Housing and Consumers Protection Measures Act 95 of 1998 (hereinafter referred to as the “Act”).

The obligation to register and enrol is part of the Act’s regulatory system aimed at protecting consumers from substandard building work.  

Recently, the Supreme Court of Appeal had to pronounce on whether a developer is required to enrol a development project with the Council and pay the prescribed enrolment fee under section 14 (1) of the Act if the developer had no intention of selling the apartments or developing them under a sectional title scheme.

In National Home Builders Registration Council and Minister of Human Settlement versus Xantha Properties 18 (Pty) Ltd [1] case, the developer embarked upon the construction of property development in Cape Town consisting of shops and residential apartments.

The developer in the present matter expressed that it had no intention of selling these residential apartments or developing them under a sectional title scheme, but its sole purpose was to rent them to prospective tenants.

As a result, the developer although registered as a homebuilder as defined in the Act, disputed being obliged to enrol the development project with the Council or to pay the prescribed enrolment fee under section 14 (1) of the Act, contending that the said section did not require a homebuilder to enrol houses being constructed solely for being let.

The Council and the Minister of Human Settlements contended otherwise and insisted upon the respondent’s development being enrolled and that the developer pays the necessary enrolment fee of over R 1.5 million.

The developer paid the said sum under protest and approached the High Court, Cape Town for a declaratory order that it was not required to enrol the development project or pay the prescribed enrolment fee.

The developer contended that the Act was intended to provide a form of housing insurance in favour of housing consumers against errant home builders.

It submitted that it was the homebuilder and the end-user of the apartments which it intended to rent out and a result it was irrational to expect it to insure it against itself.

It submitted further that despite the definition of ‘business of a home builder’ containing specific reference to homes constructed for the purpose of being let, section 14(1) has no application in such a case by reason of the definition in section 1 of the Act of ‘housing consumer’ which refers to ‘a person who is in the process of acquiring or has acquired a home and includes such person’s successor in title’.

In the view of this, it was argued on behalf of the developer that the word ‘acquire’ used in the definition mentioned above is generally understood as buying or obtaining ownership of something which, in the context of the Act, would mean gaining ownership of a home.

And so the argument went that, a person who rents a property without becoming its owner cannot be said to have ‘acquired’ the property and, by definition, can thus not be a ‘housing consumer’ and that protection afforded to housing consumers in terms of the Act was limited to consumers who either purchase homes or have homes built for them. 

The argument put forward on behalf of the developer was that the Act’s regulatory system was not intended to apply to homes being constructed for rental and therefore the provisions calling for enrolment of the development project and payment of the enrolment fee did not apply.

The developer’s application for declaratory order succeeded in the High Court, Cape Town and with the leave of the said court, the Council and the Minister of Human Settlements appealed against the decision.

Following an interpretation of the relevant provisions of the Act, the Supreme Court of Appeal held there was no reason why the legislature would have decided that homes built to be rented out should be treated differently from those constructed for resale.

The Appeal Court further confirmed that the fundamental purpose of the Act is to guard against builders constructing substandard homes. 

As a result, the decision of the High Court, Cape Town was overturned, and the declaratory order sought by the developer dismissed with costs.


[1] National Home Builders’ Registration Council & another v Xantha Properties 18 (Pty) Ltd (780/2018 and 784/2018) [2019] ZASCA 96 (21 June 2019)

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