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Author: MHI Law

WHO IS THE EMPLOYER? THE LABOUR BROKER OR THE CLIENT?

WHO IS THE EMPLOYER? THE LABOUR BROKER OR THE CLIENT?

I was employed by a Temporary Employment Service (“TES”) to work on a fixed-term basis for a company that manufactures stationery. After working for the same client continuously for six years, I was informed that my services will no longer be needed. I want to refer my matter to the Commission for Conciliation, Mediation and Arbitration, however, who will be the responsible party?

As a vast majority of employees in South Africa obtain employment through TES or commonly known as labour brokers, it is a predicament which many are faced with when the client of a TES, suddenly and sometimes without prior notice, decides to end the employment of the employee. As the employee was providing his labour to the client and not the TES, the question arises: who is then actually the employer of the employee?

The deeming provision in s198A(3)(b)(i) of the Labour Relations Act, 66 of 1995 (“LRA”) provides that an employee of a TES not performing a temporary service for the client is “deemed to be the employee of that client and the client is deemed to be the employer…”

In a recent series of cases between Assign Services (Pty) Limited and the National Union of Metalworkers of South Africa the Labour Court, Labour Appeal Court (“LAC”) and eventually the Constitutional Court were given the task to decide who will be deemed to be the employer of an employee who was employed through the use of TES.

The aforesaid section was the crux of the matter and the two main points of argument were: firstly, that once the deeming provision kicks in, the client of the TES becomes the sole employer of the employees, meaning that the TES employees are effectively “transferred” to the client. Secondly, that a dual employment relationship arose with both the TES and client as employers.

When the matter was referred to the Commission for Conciliation, Mediation and Arbitration, the commissioner held that the client becomes the sole employer of the placed TES employees for purposes of the LRA.

The matter was then taken on review to the Labour Court who rejected the argument that s198A(3)(b)(i) creates a sole employment relationship between the client and the placed employees. According to the Labour Court, the deeming provision augmented the employment contract between the TES and its employees and added the client as the party against whom the employees could claim their rights in terms of the LRA.

The Labour Court’s decision was then taken on appeal to the LAC. The LAC held that the TES is the employer of the placed employee until the employee is deemed to be the employee of the client and that the deeming provision becomes applicable after three months of continuous employment with the same client, the client becomes the statutory employer of the TES employee. The TES employees are deemed to be permanent employees of the client.

The matter was then referred to the Constitutional Court to make a final ruling on the matter. In a majority decision of the Constitutional Court, the ruling of the LAC was supported and accepted. The court supported its interpretation of the deeming provision by refereeing back to the whole idea of the legislator in providing protection to the TES employees. The court further held that the s198A must be contextualised within the right to fair labour practices in section 23 of the Constitution of the Republic of South Africa, 1996 and the purpose of the LRA as a whole. According to the court, a TES’s liability only lasts as long as its relationship with the client and while it continues to remunerate the employee. As soon as the client elects to remunerate the employee directly, the TES will then not be part of the employment relationship.

In light of the Constitutional Court judgment, as soon as the employee provides services to the client of a TES for a period longer than three months, the deeming provision will become applicable and the client will be faced with the duties and responsibilities of an employer. The employee automatically becomes employed on the same terms and conditions of similar employees, with the same employment benefits, the same prospects of internal growth and the same job security that follows. This will also mean that any legal action and liability that flows from the aforesaid will also be direct against the client.

Sources:

  • Labour Relations Act, 66 of 1995
  • Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others 2018 (5) SA 323 (CC)
  • https://www.golegal.co.za/deeming-provision-lra/
  • The Constitution of the Republic of South Africa, 1996

 
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

PROPOSED HARSHER PENALTIES FOR APPLICANTS WHO LIE ON THEIR CVS

PROPOSED HARSHER PENALTIES FOR APPLICANTS WHO LIE ON THEIR CVS

According to an IOL report dated 31 January 2019, the number of false qualifications is on the rise in the country, with 97 national qualifications that were found to be fraudulent and misrepresented during the period of October-November 2018. Therefore, as a response to this shocking statistic, the National Qualifications Amended Bill was introduced into the National Assembly and the changes discussed hereunder could be effected.

The National Qualifications Framework Act No. 67 of 2008 (“The Act”) is proposed to apply to every qualification and/or part-qualification that must be registered in terms of the Act. The South African Qualifications Association (“SAQA”) must, in order to advance the objectives of the Act verify all qualifications or part-qualifications and make a decision on the status thereof.

Any person who claims that a qualification or part-qualification has been awarded to him/her by an educational institution, skills development provider or foreign institution whereas in fact no such qualification or part-qualification has been awarded, will be guilty of an offence and will be liable on conviction to any sentence which may be imposed for an offence of fraud. This means that if an applicant lies on his/her CV about whether having the necessary qualification will be guilty of the offence of fraud.

Any person or educational institution who claims that he/she/it is offering any qualification or part-qualification that is registered in terms of the Act, whereas such qualification or part-qualification is not registered, is guilty of an offence and is liable on conviction to any sentence that may be imposed for the offence of fraud.

Any person or educational institution who claims that he/she/it is accredited by a legally recognised body to offer any qualification or part-qualification whereas no such accreditation was granted, will be guilty of an offence and will be liable on conviction to any sentence that may be imposed for the offence of fraud.

Any person who produces a certificate, diploma, degree, computer printout and/or any falsified records in connection with a qualification or part-qualification, to the prejudice of any other person, will be guilty of an offence and will be liable on conviction to any sentence that may be imposed for forgery.

Any person who passes off a certificate, diploma, degree, computer printout or any falsified records in connection with a qualification or part-qualification, to the prejudice of another person, will be guilty of an offence and will be liable on conviction to any sentence that may be imposed for uttering.

What if I help someone or know of any person who has falsified or incorrectly misrepresented the presence of a qualification or part-qualification?

Any person who conspires with any other person and/or incites, instructs, commands or procures another person to commit an offence in terms of this Act, is guilty of an offence of aiding, abetting, inciting, conspiring another person to commit an offence in terms of this Act and is liable on conviction to a fine or imprisonment not exceeding 3 (three) years or to both such fine and imprisonment.

What factors will the court take into consideration when sentencing an individual who has lied on his/her/their CV?

A court which imposes any sentence in terms of this amendment bill must, without excluding any other relevant factors, consider aggravating factors such as the extent of the prejudice and loss suffered by the complainant as the result of the commission of such an offence; and the extent to which the person gained financially, or received any favour, benefit or reward from the commission of the offence.

The proposed Amendment Bill is a step in the right direction in the combat of fraud nationwide. This has specific bearing on those candidates in high-profile employment positions such as, but is not limited to, CEOs and politicians.

Reference List:

  • National Qualifications Framework Act 67 of 2008.
  • National Qualifications Framework Amendment Bill (Government Gazette No. 40430 of 18 November 2016).
  • IOL report: 31 January 2019.

 
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

MY NEIGHBOURS ARE RENOVATING THEIR HOUSE WITHOUT COMPLYING WITH BUILDING REGULATIONS. WHAT ARE MY OPTIONS?

MY NEIGHBOURS ARE RENOVATING THEIR HOUSE WITHOUT COMPLYING WITH BUILDING REGULATIONS. WHAT ARE MY OPTIONS?

What one’s neighbour builds on their property, is not something the owner of the neighbouring property has a lot of control over. Unfortunately, it can have a negative impact on your property if the building work completed on your neighbour’s property does not comply with building regulations. Furthermore, it can be aesthetically displeasing, and be a sore eye to your property. Is there anything you can do in terms of the law to assist you in situations like these?

Buildings not complying with building regulations:

In the context of increasing state regulation, the adjudication of neighbour disputes about building has now apparently mostly migrated from the private law context of reasonableness to the public law context of legality. One consequence of this shift is that any building, first of all, has to comply with statutory and regulatory requirements before there could be any question about the reasonableness of any impact it may have on neighbours. Building works that do not comply with the applicable formal requirements (including permission to develop or subdivide, removal or amendment of restrictive conditions, compliance with zoning restrictions, and approval of building plans) are illegal regardless of their effect on neighbours.

To have these building works declared illegal (to have building work stopped or to have the completed building work demolished), neighbours do not have to prove that the buildings are unnatural, abnormal or unreasonable in the context – the mere fact that they do not comply with the formal requirements is enough to render them illegal. Building and zoning regulations are normally enforced by the relevant local authorities, but if they fail to do so, it has been decided that neighbours have the necessary locus standi to apply for a court order to enforce compliance with the relevant laws and regulations.

Remedies

The local authority or neighbours can obtain an interdict to stop the building work and – at least in some instances – an order to have the illegal buildings demolished.

It has been decided that the courts have the discretion to award monetary compensation rather than order demolition, but recently the courts have repeatedly stated that they will not be precluded from handing down demolition orders simply because buildings have been completed or because of the cost or value of completed building works or the hardship that the builder would suffer if a demolition order was granted.[1]

Views, sunlight, natural flow of air, privacy

A landowner cannot complain generally speaking, when otherwise lawful building works on adjoining or neighbouring land obstruct her previously existing view across that land or her previously existing access to sunlight, natural light or the natural flow of air.[2]

In De Kock v Saldanhabaai Munisipaliteit[3], the applicant argued that the building plans approved with regard to neighbouring land had to be reviewed and set aside because the building, once completed, would allow the neighbours to see onto his property, thereby invading his privacy. The application was dismissed because the court found no indication that the local authority had failed to apply its mind or to consider the relevant legislation and regulations in approving the plans. The implication seems to be that a landowner does not have an independent, inherent right to oppose building works on neighbouring land that would afford a view onto his property.[4]

Conclusion:

If a building does not comply with the relevant building regulations, or is not built according to an approved plan, an aggrieved neighbour’s primary remedy is to report the building to the municipality. The municipality is then supposed to interdict the person transgressing building regulations from building further and can even order for the demolition of an illegal structure. If the municipality fails in abovementioned duty, a neighbour can approach the court to enforce compliance with municipal regulations.

Building work which is only aesthetically displeasing or cause a loss of privacy, but adheres to all municipal regulations, will not constitute an actionable cause of action. The rationale behind this is because of the subjective nature of aesthetic considerations – what bothers one neighbour will not bother the next. Therefore, a neighbour’s remedies in this regard are very limited.

[1] AJ van der Walt, The Law of Neighbours, 1st edition, (2010), p. 341-343

[2] Van der Walt, The Law of Neighbours, p. 356

[3] 7488/04 (2006) ZAWCHC 56 (28 November 2006)

4] Van der Walt, The Law of Neighbours, p. 372
 
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

LAND EXPROPRIATION BILL: WHAT IT MEANS FOR YOUR LANDOWNERSHIP RIGHTS

LAND EXPROPRIATION BILL: WHAT IT MEANS FOR YOUR LANDOWNERSHIP RIGHTS

During 2018, the African National Congress (ANC) announced its intention to drastically speed up the land reform process in South Africa when President Cyril Ramaphosa announced that he would be proposing changes to section 25 of the Constitution of the Republic of South Africa (“the Constitution”) to allow for the expropriation of land without compensation.

In essence, expropriation of land occurs when the state takes land away from its owner for public use. Where land is expropriated without compensation, the landowner is not compensated for the value of the property lost. Currently, our Constitution only allows for expropriation with compensation.

The proposed changes to the Constitution elicited much debate, as there is a rigorous process to be followed to amend a right such as section 25, which forms part of the Bill of Rights. In terms of section 74(2) of the Constitution, the Bill of Rights may only be amended by the passing of a Bill which must be approved by the supporting vote of at least two thirds of the National Assembly, as well as the supporting vote of at least six of the nine provinces of the National Council of Provinces. Once voted on, the Bill must be drafted and published in the Government Gazette allowing the public 30 days to comment thereon. Only once this 30-day period has passed may the Bill be introduced to Parliament.

Importantly, amendments to a right in the Bill of Rights may only be made where they are in line with section 1 of the Constitution and do not stray from matters directly connected to the amendment. Section 1 states that the Republic of South Africa is founded on the value of supremacy of the Constitution and the rule of law. If the rights contained in the Constitution, as the supreme law of the land, were subject to constant change, its overall credibility and reliability would be in danger. The credibility and supremacy of the Constitution are pivotal, especially in light of apartheid which was enabled by the manipulation and strategic interpretation of laws.

Following the above-prescribed procedures, the ANC introduced the Land Expropriation Bill (“the Bill”) to Parliament in February 2018.

In terms of clause 7(1), an expropriating authority must serve a notice of intention to expropriate on the owner of the land and any other person who may hold a right in the property. Clause 7(2) specifies what is to be included in such notice.

There is a misconception that the Bill allows for the expropriation of land without compensation immediately and without recourse to the owner of the land or any person who has rights therein. This is incorrect. The Bill requires the landowner and the expropriating authority to negotiate and reach an agreement as to the amount of compensation payable to the landowner. Only once such an agreement of compensation payable cannot be reached, and 40 days have passed, may the expropriating authority decide whether or not to proceed with the expropriation.

Clause 12 states that the amount of compensation to be paid to a landowner must be just and equitable and reflect an equitable balance between the public interest and the interests of the landowner. Notably, clause 12(3) of the Bill states that it may be just and equitable for nil compensation to be paid to the landowner where land is expropriated in the public interest.

In sum, the Bill entitles an expropriating authority to expropriate land against a payment of compensation determined in terms of clause 12 of the Bill. This means that the compensation awarded must be just and equitable, which, where it is in the public interest, may be nil.

Reference List:

 
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

YOU CAN ATTEND TO THE REGISTRATION OF YOUR HOME OWNER’S ASSOCIATION WITH THE COMMUNITY SCHEMES OMBUD SERVICE BY YOURSELF

YOU CAN ATTEND TO THE REGISTRATION OF YOUR HOME OWNER’S ASSOCIATION WITH THE COMMUNITY SCHEMES OMBUD SERVICE BY YOURSELF

The Community Scheme Ombud Service Act 9 of 2011 and its Regulations, (“the Act”),  came into operation on 7 October 2016.

Said Act is applicable to all community schemes, which are defined in the Act as, ”any scheme or arrangement in terms of which there is shared use of a land and responsibility for parts of land and buildings, including but not limited to a sectional titles development scheme, a share block company, a home or property owner’s association, however constituted, established to administer a property development, a housing scheme for retired persons, and a housing cooperative as contemplated in the South African Co-operatives Act, 2005 (Act No. 14 of 2005) and ‘scheme’ has the same meaning”.

Thus, no matter how small the HOA that you belong to, the Act will still be applicable and registration of your HOA in terms of the Act is compulsory.

Upon commencement of the Act, a juristic person, known as the Community Schemes Ombud Service, have been established, whose main purpose is to provide a dispute resolution service, and to promote and regulate good governance of community schemes, including the implementation of organisational systems, controls and measures to enhance the efficient financial and economic management of all schemes.  Some of these measures include the lodging of annual returns at the Chief Ombud, as well as the payment of levies to the Ombud Service, by every unit within a scheme, based on a prescribed rate.

This article’s focus is however mainly directed at the process to be followed in order to register your HOA with the Ombud Service.

The Act is written in clear and concise language, and is quite easy to understand. Chapter 5 of its regulations contains prescribed forms that have to be completed and filed with the Ombud Service in order to register your HOA.

Section 18(3) of the regulations to the Act requires a community scheme, which includes a HOA, to complete and file registration Form CS 1, attached to the Act, within 30 (thirty) days after the regulation came into effect, (thus within 30 days after 7 October 2016), or on the date of incorporation of the community scheme in terms of the applicable Act.

The contents of the form require inter alia the following documentation regarding the scheme to be sent to the Chief Ombud, namely, the completion of the name of the community scheme, contact details of the scheme, names and contact details of the trustees and the authorized representative of the HOA, details of the managing agent if applicable, as well as copies of the audited financial statements of the scheme and details regarding the scheme’s financial year end. It furthermore requires copies of the Constitution and Rules applicable to the scheme, and also list additional supporting documentation that must be provided should it be applicable.  It then provides you with contact numbers and an e-mail address in order to send the completed registration form to the Chief Ombud.

As the list is quite extensive, we would advise that careful consideration is given to provide all the documentation applicable to the scheme upon application of the registration thereof, also to prevent unnecessary to and fro communication between the Ombud and the HOA, and to ensure a speedy registration of the scheme to what appears to be a rather simple procedure.

Once confirmation of registration of your HOA is received from the Ombud Service, the HOA will be liable for the payment of levies and service fees to the Chief Ombud on a quarterly basis, calculated on the prescribed formula as contained in Chapter 3 of the regulations to the Act.

Should you be uncertain how to calculate your HOA’s levies payable to the Chief Ombud, and/or wish to know more about the other obligations imposed on a HOA in terms of the Act, you are welcome to contact our offices for an appointment.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

INVESTING IN A RENTAL PROPERTY

INVESTING IN A RENTAL PROPERTY

Buying a rental property could be an incredible investment opportunity, however, it’s important to make a well-informed decision before investing, as it is not for everyone. Although investing in a rental property provides many benefits, such as a potential extra income, and a way of paying off the property, it poses certain risks as well.

The following should be considered when deciding whether or not to invest in a rental property:

  1. Calculate the upfront costs:

When you purchase a property, there are several upfront costs that would need to be paid. These include bond costs, attorney fees, bank initiation fees and transfer duty. You need to be fully financially prepared before investing in a rental property. In the case of applying for a bond, your financial circumstances will be taken into account, as a means of determining whether or not you will be able to service a loan.

  1. Calculate the ongoing costs:

After the property has been purchased, there are several ongoing costs that need to be considered. These costs include rates and taxes, insurance and maintenance.

  1. Vacant rental properties:

If your rental property is empty for a period of time, you need to ensure that you have the funds to cover the costs of your rental property. You cannot depend on your rental property generating an income 24/7.

  1. Rent:

The amount of rent you can charge your tenant per month will depend on factors such as property type, amenities, etc. This should play a vital role in your decision when buying a rental property.

  1. Rental agreement:

Before a tenant moves in, you need to ensure that you have a very strong rental agreement in place. This agreement will protect the property owner in the case of disputes and damages to the property.

  1. Taxes:

The rent that you receive from the tenant, is not meant to go straight to your pocket. Tax law states that the property owner needs to pay tax on the rent received from the tenant.

  1. Potential tenants:

When looking at potential tenants, it is of vital importance that the owner vet all potential tenants, in the form of credit checks, background checks, etc.

The above-mentioned points should be considered before investing in a rental property. As mentioned, it could be a sound investment and provide you with a potential extra income once the property has been paid off, however, if not done right, it could cost the property owner dearly, so be sure to make a well-informed decision before investing.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Choosing guardians for your minor children

Choosing guardians for your minor children

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE CYBERCRIMES BILL: MALICIOUS MESSAGING OVER SOCIAL MEDIA COULD SEND YOU TO JAIL

THE CYBERCRIMES BILL: MALICIOUS MESSAGING OVER SOCIAL MEDIA COULD SEND YOU TO JAIL

South Africans will soon have to be much more careful and think twice about the messages they send over WhatsApp and other social media platforms, as the Cybercrimes Bill (“the Bill”), which was recently adopted into law and is in the process of being enacted, attempts to police malicious messaging.

Cybercrime is on the rise and the Bill essentially aims to stop these acts, to keep people safe from criminals and terrorists, to improve the security of the country and to bring South Africa in line with other countries’ cyber laws. The practical impact of the Bill on all organisations and individuals are significant and unfortunately mostly negative. It impacts all of us who process data or use a computer.

Contravening the provisions entailed in the Bill could lead to a fine or imprisonment for a period not exceeding three years, or to both a fine and imprisonment. The Bill fundamentally intends to curb the number of harmful messages, which by definition now covers a wide range of subject areas, that do the rounds on social media.

The Bill incriminates, amongst others, the following acts in particular:

  • Disrupting another’s personal details: By sharing another’s personal details online for malicious purposes, without their knowledge and/or consent.
  • Unlawful sharing of intimate images: Publishing and/or distributing another’s nude intimate images or multimedia files of an intimate nature will constitute a harmful disclosure of pornography, which the Bill seeks to regulate. The Bill describes an “intimate image” as both real and simulated messages which shows the person as nude or displays his/her genital organs or anal region. This includes instances where the person is identifiable through descriptions in a message or from other information displayed in the data message. These acts can cause extensive reputational damage to another, especially if the said person had no intention of making it public.
  • Sharing of information regarding investigations into cybercrimes: The Bill enables the Minister of Justice to make regulations on information sharing. This includes sharing information on cybersecurity incidents, detecting, preventing and investigating cybercrimes.
  • Inticing damage to property belonging to “a group of persons”: Sharing messages which encourage people to damage property belonging to a certain demographic group, could lead to an arrest simply for the incitement rather than the act. This act includes any implied threats of violence against “a group of persons”.

The Bill was first published on 28 August 2015, updated on 19 January 2017 and introduced in Parliament on 22 February 2017, where it currently still sits. There have been extensive comments on the Bill during the public participation period in 2017. These comments have been considered and incorporated and the latest version of the Bill was published on 23 October 2018. The new version of the Bill creates many new offences, some relating to data, messages, computers and networks.

The Bill has come a long way since its first publication and the overall effect of its provisions will be tested over time. Readers are, however, advised to take note of the Bill and its consequences before it is signed into law, as ignorance of the law will not be an excuse.

Reference List:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

FIRST-TIME HOME BUYER?

FIRST-TIME HOME BUYER?

Buying a property is a rather big deal, which is why you should be sure that you are able to afford it before you end up running into debt. Owning your own home is a very rewarding experience, but there are usually some obstacles along the way. Follow the steps the below to be sure that your new home is your dream home.

  1. Make sure you have a healthy credit score

Your credit score lets banks know how well (or badly) you manage your debt. A good credit score improves your chances of getting a home loan.

In order to build up your credit score, make sure you pay all your bills on time, every time. Clear as much of your debt before applying for a home loan. If you don’t have a credit card, you should apply for one to aid your score. Check your status by getting a credit report from a credit bureau.

  1. Save up for a deposit

Having a deposit saved makes you more attractive to sellers, agents and banks, which means, if you have a deposit ready, you have a higher chance of getting your loan approved. A deposit also means that your loan repayments will be lower; you’re in a better position to negotiate an interest rate if you have a deposit since there is a lower risk for the bank.

  1. Look out for any additional costs

There are a number of additional costs that are incurred when buying and taking ownership of a house, and these may come as a shock to a first-time buyer.

Make sure to account for additional buying costs such as the loan initiation fee, transfer duty, loan registration costs and conveyancing fees. Also ensure that you take additional homeownership costs into consideration, e.g. loan repayments, homeowner’s insurance, municipal rates and taxes, water and electricity, maintenance, and security.

  1. Ensure the price is worth it

You should make sure that there are no damages to the property. Be sure to check for any leaks, as it might become a costly and annoying long-term problem.

If you’re planning to make this your forever home, you might want to consider what facilities are available nearby in case mobility becomes a problem. Is there a doctor close by? Are the transport links good?

Conclusion

From this it should be clear that buying a house is a rather complex activity that necessitates a lot of thought, calculating, and logical reasoning. It is advised to obtain the help of a professional to be absolutely sure that the money you end up paying is worth all the possible obstacles that you may encounter.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE CANNABIS JUDGMENT: IS IT LEGAL NOW?

THE CANNABIS JUDGMENT: IS IT LEGAL NOW?

Cannabis has historically been criminalised in South Africa. It has, until recently, been a criminal offence to possess, cultivate or use cannabis. However, this position has been drastically altered by a ground-breaking unanimous judgment by the Constitutional Court in the case of Minister of Justice and Constitutional Development and Others v Prince.

This case came before the Constitutional Court as part of confirmatory proceedings in terms of section 167(5) of the Constitution after the Western Cape High Court declared certain sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act inconsistent with the right to privacy as enshrined in section 14 of the Constitution. The Court furthermore ordered Parliament to cure this constitutional defect within 24 months.

The right to privacy can be defined as the right to live and enjoy one’s life with a minimum of interference. Deputy Chief Justice Raymond Zondo who penned the Constitutional Court’s judgment agreed with this definition when he stated that, “It can legitimately be said that the right to privacy is a right to be left alone.” This case thus essentially raised the question of whether or not the State can interfere with what you do in private if such private act does not adversely affect others. The Court found the privacy argument convincing and accordingly found that the prohibition of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption is inconsistent with the right to privacy provided for in section 14 of the Constitution.

It is important to note that the Court did not legalise cannabis as a substance. It was merely decriminalised to the extent that adults may now grow their own cannabis and use it in a private space. The Court, with reference to the cultivation thereof, stated:

“An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

The Court did not, however, state what would constitute a private space for purposes of using or cultivating cannabis. It is thus unclear whether or not a private space is limited to one’s dwelling or whether it can include spaces such as motor vehicles or other privately-owned spaces such as restaurants or festival grounds. This is thus something that Parliament will most probably clear up when enacting the legislation as discussed above.

It is of utmost importance to note that the commercialisation of cannabis has not been legalised. It is thus still a criminal offence to cultivate cannabis for commercial purposes or to trade with cannabis. The Court stated in this regard that, “[D]ealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy.” The right to privacy as it relates to the use of cannabis is furthermore limited in that the use thereof in the presence of children or non-consenting adults are also still prohibited and thus a criminal offence.

The judgment is very vague as to how much cannabis a person may possess. However, it is advisable in this regard not to cultivate or possess large quantities of it since the Court stated that:

“In determining whether or not a person is in possession of cannabis for a purpose other than for personal consumption, an important factor to be taken into account will be the amount of cannabis found in his or her possession. The greater the amount of cannabis of which a person is in possession of, the greater the possibility that it is possessed for a purpose other than for personal consumption.”

It is clear from the above that there is still a lot of legal uncertainty regarding the legality of cannabis use. Vishnu Naidoo, a national police spokesperson, said that the relevant authorities are currently busy formulating a directive to its members as to what they should do when encountering someone who has cannabis in his or her possession. This will give us some certainty, but complete legal certainty will only be attained once Parliament has done its job.

Reference List:

  • Minister of Justice and Constitutional Development and Others v Prince
  • https://www.dailymaverick.co.za/opinionista/2018-09-18-concourt-cannabis-judgment-what-was-the-reasoning-and-what-does-it-mean/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)