EARLY TERMINATION OF FIXED TERM

Much has been said concerning justifying the use of a fixed term contract for employees earning below the threshold. (Currently R205 433.30). Whilst the Labour Relations Act (LRA) sets out the principles in this regard, the LRA does not specify whether such a contract may be terminated prior to the date specified in the contract.

The question to be answered is what happens if due to economic considerations or otherwise a company is required to terminate the fixed term contract prior to the end date specified?

The courts are clear that if the contract does not make provision for its early termination, the employer is not able to cancel the contract to the detriment of the employee.

In such situations the employer would be forced to continue employing the employee or would need to pay the employee for the balance of the contacted period.

The above clearly shows how important it is to ensure that the fixed term contracts utilised are well constructed as the converse could be a costly mistake.

For expert advice contact Tracey Mouton on 041 501 9800. Email traceym@goldlaw.co.za

TIPS TO PREVENT DELAYS IN SELLING YOUR HOME

  • Pay all rates and service charges on the property to ensure that your account is up to date. A rates clearance certificate will not be issued by the municipality if there are unpaid arrears.
  • Keep the original title deed available. If there is a bond over the property, the title deed will be held by the bank.
  • Keep all bond payments up to date, if there is a bond over the property.
  • If the property is in a sectional title unit, ensure that all levies are up to date and that all outstanding requirements of the body corporate have been met. The body corporate may need to consent to the sale and will withhold its consent if there are any outstanding payments or other matters.

For more information or advice contact us at Goldberg & de Villiers Inc Tel: 041 501 9800.

Protection of Personal Information

There is nobody who has a cell-phone that has not been the victim of a constant stream of telephone calls from businesses marketing themselves and their products as “the next big thing”.  Many of us find ourselves constantly explaining to the person on the other end of the line – whose job it is to harass the list of potential clients they are given on a piece of paper on a daily basis –  that we do not require the product they are offering. The question we often end up asking ourselves (and sometimes the telemarketer)  is: How did you get my number?

Recently, I have been asked about whether this type of marketing is legal, and how the company who phones you got your details. The two main pieces of legislation which protect consumers in this regard is the Protection of Personal Information Act 4 of 2013 (“PoPI Act”)  and the Consumer Protection Act 68 of 2008 (“CPA”).

Section 11 of the CPA states that every person has the right to refuse to accept, discontinue or pre-emptively  block any approach or communication to that person, if the approach or communication is primarily for the purpose of direct marketing.

The CPA goes further and states that to facilitate the realisation of each consumer’s right to privacy, and to enable consumers to efficiently protect themselves against the activities contemplated in subsection (1), a person who has been approached for the purpose of direct marketing may demand that the person responsible for initiating the communication desist from initiating any further communication.

In simple terms, the purpose of the PoPI Act is to ensure that all South African institutions conduct themselves in a responsible manner when collecting, processing, storing and sharing another entity’s personal information by holding them accountable should they abuse or compromise your personal information in any way. The PoPI legislation basically considers your personal information to be “precious goods” and therefore aims to bestow upon you, as the owner of your personal information, certain rights of protection and the ability to exercise control over:

  • when and how you choose to share your information (requires your consent)
  • the type and extent of information you choose to share (must be collected for valid reasons)
  • transparency and accountability on how your data will be used (limited to the purpose) and notification if/when the data is compromised
  • providing you with access to your own information as well as the right to have your data removed and/or destroyed should you so wish
  • who has access to your information, i.e. there must be adequate measures and controls in place to track access and prevent unauthorised people, even within the same company, from accessing your information
  • how and where your information is stored (there must be adequate measures and controls in place to safeguard your information to protect it from theft, or being compromised)
  • the integrity and continued accuracy of your information (i.e. your information must be captured correctly and once collected, the institution is responsible to maintain it).

We have to accept that we now live in an information age and along with this progress comes the responsibility for each person to take care of and protect their own information. Do not accuse someone else of sharing or compromising your personal information when you publish the very same information on public services like Facebook, LinkedIn, Google+ or public directories.  Modern technology makes it easy to access, collect and process high volumes of data at high speeds. This information can then be sold, used for further processing and/or applied towards other ends. In the wrong hands such an ability can cause irreparable harm to individuals and companies. To protect your right to privacy and abuse of your information, data protection legislation is necessary even if it means imposing some social limits on society to balance the technological progress. So remember:  The PoPI Act cannot protect you if you do not take care to protect yourself.

Remember that the next time somebody calls you to sell you something you did not sign up for, you have the right to request how they got your personal information, and that they desist from continuing to call you.

For quality legal assistance contact our Litigation Department on 041 501 9800.

Employment Equity – Preparing for a Director-General Review

In the wake of the Department of Labour’s Roadshow on Employment Equity, it is imperative that employers properly comply with the requirements of employment equity and not use a tick box approach to compliance. The Department of Labour has realised that employers have been superficial in their approach and the intensifying Director-General Reviews is aimed at ensuring employers do what they are supposed to and not the bear minimum.

One aspect that the Department of Labour will scrutinise is the consultations with employees. In order to “pass the test” in this regard it is imperative that the consultations are genuine. The best way to illustrate this to the Department is to ensure the following are in order:

  1. The Agendas are to set out fully the topics that will be discussed and debated;
  2. Attendance registers are to set out the constituencies represented;
  3. Detailed minutes, including resolutions taken and action items must be drafted. The minutes are to reflect the discussions held especially in respect of the analysis the workforce profile and the procedures, practices, policies and work environment;
  4. Proof of regular meetings – 4 per year is deemed regular

For assistance in preparing for a Director-General Review or drafting your Employment Equity Plan and Report, contact our Human Resources and Employment Law Division on 041 501 9832 or traceym@goldlaw.co.za

 

JOINT BOND BETWEEN UNMARRIED PARTNERS/FRIENDS

Although applying for a joint bond with a partner to whom one is not married or a friend may be a viable option to enable persons to enter into the property market, it may become a costly and complicated exercise if the relationship ends or circumstances change. If one of the partners wishes to be free from the bond and agrees to be removed from the bond, the remaining partner will have to apply to the bank to be substituted as debtor. The bank will only approve such a substitution if the remaining partner qualifies for the loan as a whole. The partner being removed from the bond will also be required to sell his/ her share in the property to the remaining partner. Alternatively the property should be sold as a whole to a new owner and the bond should be cancelled. All of these options will result in the parties incurring costs and expenses for instance the costs to register a substitution of a debtor, transfer costs relating to sale of a share in the property, transfer duty and rates and taxes for clearance purposes. It is recommended that advice be obtained on the legal, tax and cost implications before entering into such an arrangement.

At Goldberg & de Villiers Inc, our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill​ and Nicholas Mitchell, assisted by Bardine Hall will gladly assist you with any of your Property Law related matters. Please contact us on 041-5019800.

TRANSFERRING YOUR HOUSE TO YOUR CHILD

Elderly parents often consider transferring their immovable property to their adult children instead of bequeathing it to them after their death.

There may be practical advantages to such a decision but the legal, tax and cost implications should be carefully considered.

The transfer of the property is usually in the form of a donation (a gift) or the sale of the property to the child. A written contract must be entered into between the parent and child.  The following should be carefully considered and the advice of an expert should be obtained.

DONATIONS TAX : If the property is donated to the child, donations tax of 20% is payable by the parent to SARS on the value of the property. Every person is entitled to an annual exemption of R100 000 in respect of donations tax. The first R100 000 of the value of the property will therefore be exempt from donations tax and the balance will attract donations tax.

ESTATE DUTY : The above tax implications should be carefully compared to the estate duty implications if the property should be bequeathed to the child. The parent may be entitled to a surviving spouse rebate and a rebate of R3,500,000.00. It may therefore not be necessary to reduce the value of the estate of the parent in order to reduce estate duty. Sufficient cash must however be available in the estate to cover the transfer costs. Estate planning advice should be obtained.

TRANSFER DUTY : Bequests of immovable property are exempt from transfer duty. Whereas if the property is transferred during the lifetime of the parent, the child who acquires the property will be liable for transfer duty on the value of the property above R900,000.00. SARS requires two independent valuations of the property if the parties to a transaction are related.

OTHER COSTS : If there is a bond over the property, the outstanding balance of the bond would have to be cancelled. Depending on the financial arrangements between the parties, the child may be required to obtain a bond in his or her name in respect of the property before the transfer will be permitted. Attorney’s fees would be payable in respect of the bond cancellation, bond registration and the transfer of the property according to prescribed rates. It is recommended that quotations of all costs be obtained to ensure that there are no unexpected expenses.

At Goldberg & de Villiers Inc, our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill and Nicholas Mitchell, assisted by Bardine Hall will gladly assist you with any of your Property Law related needs. Nicholas Mitchell, heads our Estates Department will also be happy to assist you in this regard. Please contact us on 041-5019800.

MISTAKES IN CONTRACTS – What you need to know.

All contracts are based on consensus between the parties to it. Often, the parties think that they are in agreement and have reached consensus, but in fact are mistaken. If the contract is concluded and it later turns out that it was based on a mistaken belief that a certain state of affairs existed when in fact they did not, the aggrieved party may want to opt out of the contract, or claim relief from the other party.

Mistakes are classified into two categories, namely those that are material and those that are non-material. A material mistake is one which goes to the heart of the contract and completely negates consensus. Consequently, no contract can be said to have existed. In the case of a non-material mistake, a valid contract comes into existence. However, the contract is voidable (rescindable) if consensus was reached in an improper manner by way of misrepresentation, duress, undue influence or commercial bribery.

Mistakes can relate to the subject matter of the contract (error in corpore), the true nature of the contract (error in negotio), the identity of one of the parties to the contract (error in persona) or to an attribute or characteristic of the subject matter of the contract (error in substantia). An error in substantia is usually not regarded as a material mistake, whereas all of the others generally result in a material mistake.

When concluding a contract, it is important to be very clear regarding all of the aspects of the contract, so as to avoid a situation where the contract might be considered of no force or effect due to one of the reasons mentioned above. It will be impossible to try and uphold the terms of an agreement which is rendered of no force or effect due to a material mistake.

For quality legal services contact Goldberg & de Villiers Litigation Department on 041 501 9800.

RESTRAINT OF TRADE

A restraint of trade is characteristically used in an employment situation where an employee has access to the employer’s client lists and due to the nature of the position gains trust, confidence and personal relationships with the clients.

A typical example of such an industry is the insurance industry. Whilst a restraint of trade may be imposed it is essential that it be well constructed and that the intention of the contracting parties be spelt out clearly.

In a recent matter, company was upset that its employee had acquired an ex-client of their business. The company launched an interdict application in the Labour Court which application centred on whether a previous client of the company is still a protectable interest in relation to the restraint of trade.

The Court held that if the restraint does not specify the definition of client, it is only capable of being interpreted as current clients of the company. The Court held further that should a client leave the company of his or her own volition and without being induced or enticed to leave by the restrained employee and move his or her business to that restrained employee, the restrained employee cannot be seen to have breached his or her retrained.

This particular case was dismissed against the company and the company was ordered to pay costs.

The important lesson to be learnt from the matter is that a restraint is only as good as its terms and only a properly reasonably drafted restraint will be enforceable.

For more information in relation to restraints of trade and other employment law aspects, please do not hesitate to contact Tracey Mouton on 082 898 7841 or traceym@goldlaw.co.za.

HOW TO RESCIND A JUDGEMENT FROM YOUR CREDIT REPORT (for the layperson)

Your first step is to establish how much the debt is, and who it is owed to. The most direct way to do this is to obtain a copy of your credit report (from a credit bureau), and then confirm the information with the attorneys who acted on behalf of the party you owed the debt to. The attorney can confirm the listed judgement(s) against you, as well as the full outstanding balance. Remember this is most likely more than the amount of debt you left unpaid, as there will be additional costs such as interest and legal fees.


After you establish this information, agree upon a settlement amount and a payment schedule. Make sure that you pay the full outstanding amount (including the costs) on or before the date you agreed to. 


Once you have paid all outstanding debt, you can request the following documents: Paid up Confirmation and the Consent of Rescission of the judgment.


You now need to go back to the court where the original judgment against you was obtained (e.g. Port Elizabeth Magistrate’s Court), and apply to schedule a hearing to officially rescind the judgment against your name.
You will need to provide the clerk of the court the Consent of Rescission you obtained, so that it can be made an order of court. 


Once you have done this, submit the court order to the relevant credit bureaus, so that the judgment against your name can be deleted.


For more information contact us on 041 501 9800.

STARTING A BUSINESS? THE BUSINESS TRUST OPTION

 

“The secret of getting ahead is getting started” (Mark Twain)

That’s great advice from Mark Twain, so if you are sure that you are cut out for the exciting, hurly-burly life of an entrepreneur, and if you have a viable business concept, take advice now on how to get started.

In our previous article in the series “Choosing the right legal entity for your business” we looked at the private company option. In our final article in this series we consider the plusses and minuses of trading in a business trust.

WHAT IS A BUSINESS TRUST?

In summary, a trust is a contractual arrangement that allows trustees to hold assets (without owning them) for the benefit of the trust beneficiaries.

Most trusts are not “business trusts” – they are just used to hold assets. In the case of “living” trusts (the type of trust most likely to be encountered in this context) assets are initially provided by a “founder”, “settlor” or “donor”, and then owned, controlled and managed by trustees in their capacities as such (not in their personal capacities), for the benefit of beneficiaries. The trustees can, and usually do, acquire more assets for the trust thereafter, again just to hold/control/manage.

With a business trust the trustees go one step further – they trade for profit, again for the benefit of the beneficiaries.

Strictly speaking, trusts aren’t separate legal entities like partnerships and companies, but in practice they are often treated as though they were, and some legislation (tax in particular) specifically defines them as such.

5 ADVANTAGES OF BUSINESS TRUSTS:

1. Trusts, like companies, have “perpetual succession”, so they survive the death/incapacity/insolvency/removal of trustees, with all the practical benefits that entails. For example, the business can continue to operate normally after the death of the founder or trustees, rather than be tied up in the process of winding up the deceased estate. And trusts that are properly created and administered can protect assets from creditors in the event of insolvency, divorce etc of the founder/trustees/beneficiaries.
2. The trading risks of the business lie with the trust i.e. the trust’s assets are at risk from trading liabilities, not the personal assets of the parties to the trust. Trustees, unless of course they have signed personal suretyship for any trust debts, generally risk personal liability only if they fail to comply with the provisions of the trust deed and other legal requirements. In particular they have very strong fiduciary duties towards beneficiaries, and must always act in their interests. They must also observe the fundamental requirement that trust assets be treated as such, and not as their personal assets.
3. As is the case with companies, you may find it easier to raise funding for a trust than for a sole tradership or partnership.
4. Tax: Possibly an advantage … see below.
5. Savings on death: Trusts have in the past often been used to freeze the value of growth assets as part of an estate planning exercise to reduce estate duty, capital gains tax and executor’s fees. These savings can be substantial, but be aware of factors such as the high tax rates applicable to trusts (see below) and of the various recommended changes to our tax and estate duty laws (such as the Davis Tax Committee proposals) which could – if they are ever implemented – reduce the attractiveness of trusts for this purpose.

…. AND 3 DISADVANTAGES

1. Formation: Like companies, trusts require formal procedures for formation in the form of drawing up and registration of a trust deed, and appointment of trustees by the Master of the High Court. Factor the resulting delays and costs into your plans. Don’t take shortcuts here! An incorrectly worded trust deed for example will cause you all sorts of unnecessary pain.
2. Costs of administration will generally be higher than with sole proprietorships although typically lower than with companies. But check upfront with your advisors what you will be in for.
3. Tax: Possibly a disadvantage … see below.

THE TAX ANGLE:

As with all the other possible trading entities you can choose from, it is impossible to give general advice here. But as an overall comment, trusts have lost a lot of favour in recent years as a result of various government “attacks” on trusts, and they are now highly taxed compared to individuals, partnerships and companies. Apart from generally being subject to higher rates of tax, they are also denied the various tax exemptions and rebates available to individuals.

There are a host of factors to be considered here, and you need to seek advice tailored to your particular circumstances. For instance, it may or may not affect your business trust that the primary residence CGT exemption isn’t available to trusts.

Moreover government has given out strong signals that this “hostile” trend will continue. In 2017 already, interest-free and low-interest loans to trusts have become subject to the risk of being taxed as donations. Now the “conduit principle”, whereby income can be taxed at personal rates in the hands of beneficiaries rather than in the trust at a flat rate of 45%, is reportedly under threat.

Even more so than with other types of trading entity, it is essential to get specific guidance on whether a business trust is the most tax-efficient entity for your particular situation.

The bottom line is this – take full professional advice on both the legal and the tax implications of using each type of entity (or any combination of entities) before you start trading.
This is the fifth and final article in our series “Choosing the right legal entity for your business”. We hope you have found these articles a useful introduction to a most important subject.

And if you ever wonder why your business is so important to you, read “Entrepreneurs love their companies like parents love their children: study” on MedicalXpress.

For more information and advice, give us a ring on 041 5019800.