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GREAT BEGINNING TO THE NEW YEAR

GREAT BEGINNING TO THE NEW YEAR

After a blessed year in 2017, most of us could take some time off over the Christmas season to rest and recharge for another exciting year that lies ahead.

We had not forgotten about the children of Blikkiesdorp and early this year we donated stationery and paper to the kids who had burrowed a deep place in our hearts.

Our friend Clarina, that drives the Animal Ambulance and looks after the four legged animals of Blikkiesdorp knows most of the children and they love and respect her. These children are more often than not the ones who bring the sick or hurt animals to her to help mend. It is to these children that we decided to give the much needed stationery so that they may also start their new school year with at least some of the required items on the school’s list.

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We wish you all the best for 2018 and may you too make a difference in others lives.

RENTAL DEPOSITS RECLAIMED

RENTAL DEPOSITS RECLAIMED

What to know when your landlord has your deposit and has failed to pay it out

You have viewed the new property and secured it by paying the correct deposit amount to the landlord. With the transition into your new space being as breezy as it was, no red flags were raised as to how your landlord could trick you going forward. How do you approach a situation where your landlord won’t pay you back your deposit after you move out?

Firstly, a pre- and post-occupation inspection of the rental space must be completed before and after the tenant moves in. This inspection is the landlord’s responsibility and if he or she does not conduct the said inspection, they are then unable to claim against the tenant upon the lease expiration. The Rental Housing Act states that the tenant has the right not to have their home or property searched by the landlord, and thus, the landlord must give reasonable notice for inspection 3 days before the lease ends.

Regarding deposits, section 5 of the RHA states that, should there be damages incurred by the tenant under the said lease needing repair after the post-occupation inspection, the landlord must refund the remaining deposit amount, if any, to the tenant within 14 days. In the case where no claims for damages have been made by the landlord, and the tenant is debt free in terms of charges and rent, the deposit must be refunded within seven days following the lease expiration. A tenant who refuses to take part in the inspection process, and damages have been found, is liable to receive their remaining deposit 21 days from the expiration of the lease.

If a landlord refuses or has failed to refund the tenant their deposit, the tenant may approach the Rental Housing Tribunal.

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)

Reference

Rental Housing Act No. 50 of 1999. (2017). [PDF] Cape Town: Republic of South Africa, pp.6-7. Available at: https://www.gov.za/sites/www.gov.za/files/a50-99.pdf [Accessed 20 Nov. 2017].

ALL WORK AND NO PAY

ALL WORK AND NO PAY

What are your rights as an employee if your employer has not paid you?

 Under some circumstances, your salary notification might pop in 2 days after the expected pay date due to banking with a different institution. But what happens when a few more days pass and no salary has reflected, even after you have checked with your bank? You may be tempted to wait it out and hope for the best, but as an employee, you are protected by the Basic Conditions of Employment Act (BCEA) No. 75 of 1997, provided you work for more than 24 hours a month.

Applicable law

As stated by the law, the payment periods acceptable for employers to pay their employees are daily, weekly, fortnightly or monthly. Section 32 (3)(a) of the BCEA states, “An employer must pay remuneration not later than 7 days after the completion of the period for which the remuneration is payable.” Should the employer fail to comply with this, the employee may then request, by letter of demand, an explanation from the employer. This letter may also be kept as proof for the employee should the matter require legal intervention.

Where to go

If the employee earns less that the threshold of R149 736.00 per year, they may approach the Department of Labour to lay a complaint of their non-payment. After filing the complaint, the Department of Labour will send an inspector to the employer to investigate the matter further, and an instruction of payment with an expected payment date will then be issued. Upon failing to comply with this instruction after various steps of intervention have been taken, then it will lead to some of the employer’s assets being sold to raise the outstanding monies.

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)

Reference

Basic Conditions of Employment Act. (2017). [ebook] Republic of South Africa, pp.15-16. Available at:

http://www.labour.gov.za/DOL/downloads/legislation/acts/basic-conditions-of-employment/Act%20-%20Basic%20Conditions%20of%20Employment.pdf [Accessed 30 Oct. 2017].

Retrenchmentassist.co.za. (2017). Employer’s Failure To Pay Your Salary. [online] Available at:

http://www.retrenchmentassist.co.za/index.php/ra-newsletters/100-employers-failure-to-pay-your-salary [Accessed 30 Oct. 2017].

GETTING MARRIED – YOUR NETT VALUE CAN BE KEPT PRIVATE

GETTING MARRIED – YOUR NETT VALUE CAN BE KEPT PRIVATE

Angela Baker and Stanton du Doit are both wealthy individuals but they enjoy maintaining an ordinary lifestyle. They consulted with a MHI notary who explained that their ante nuptial contract will be registered at the Deeds Office and will in effect be a public document. They enquired with their notary about whether there is an alternative option to keep their current financial position private. There is a solution to their problem; they can declare their nett commencement values of their respective estates by executing a statement in terms of section 6 (1) of the Matrimonial Property Act 88 of 1984.

Herewith are the necessary stipulations to comply with section 6 (1):

  • Ante nuptial contract must be executed and registered at the Deeds Office
  • The statement declaring their respective estates must be executed before the marriage is entered into or within 6 (six) months of the commencement of their marriage
  • The statement must be signed by both parties
  • The statement must be attested by a notary
  • The statement can be executed before the same notary that executed their ante nuptial contract or it can be executed by a different notary

Angela and Stanton’s net commencement value remains private as the section 6 (1) statement is not lodged and registered at the Deeds Office but is filed in the protocol of their notary before whom their ante nuptial contract was executed.

It is best to consult with your MHI notary to ensure that your section 6 (1) statement is executed according to the provisions of our law as failure to properly execute same will mean that your nett commencement value is R 0 and can have grave consequences at dissolution of the marriage.

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)

 

A PROUD MOMENT

A PROUD MOMENT

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Each year, at the Law Society’s AGM and Conference, the Society recognises the candidates who have achieved the highest marks for each of the professional examinations.

For the past financial period, Leigh Vencencie has achieved the highest mark in the Northern, Western and Eastern Cape provinces for the Conveyancing Examination.

The Law Society bestowed an Award upon her at the Gala dinner event held in East London recently. A proud moment for MHI.

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Jurgens celebrated his 50th birthday this month. He was spoiled by his girls with a cake, a special breakfast and gifts. We gave him the rest of the day off. We wish him health and happiness for the  next 50!

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For the past few years now we have collected packages filled with love for MES. They provide life skills and other workshops to the homeless communities of Bellville, Parow, Durbanville and Brackenfell. At their yearend function MES presents these gifts together with a certificate to celebrate them enrolling in the program and taking responsibility for their lives so that they may start a journey of healing and rehabilitation.

We thank Crystal Cool Logistix, Uphando Forensic Services, all the personnel at MHI and their families and friends for helping us reaching our target of filling 79 boxes for this year.

May you all have a blessed festive season, travel safely and may 2018 be full of new adventures!

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)
WHAT IS THE ROLE OF A CURATOR BONIS & HOW IS HE/SHE APPOINTED?

WHAT IS THE ROLE OF A CURATOR BONIS & HOW IS HE/SHE APPOINTED?

A curator bonis is a person (usually an attorney or advocate) appointed by the High Court to manage the financial interests and assets of a person who has been declared to be unable to do so. The reason for his/her inability could stem from mental or physical incapacity.

To illustrate: John has been diagnosed with dementia and can no longer manage to take care of his day to day or long-term financial affairs. In such a case it would be appropriate to appoint a curator bonis, who would be tasked with managing John’s financial affairs optimally.

The appointed curator bonis does not have free reign to make decisions regarding John’s financial affairs as he/she pleases, but is limited to those powers which are granted by the Court.

These powers may include:

  • To sell any property belonging to John;
  • To carry on or discontinue any business or undertaking of his;
  • To invest John’s available funds;
  • To apply any money towards his medical care and maintenance.

The curator bonis, once appointed will also be obliged to provide regular reports and updates to the Master of the High Court and must submit a detailed administration account to the Master at each financial year end, setting out the income received, expenditure incurred etc.

The duties and powers of the curator bonis are therefore monitored by the Master and he/she is also obliged to provide security to the Master, as a guarantee that he/she will execute his/her duties properly. In most cases, an attorney will be appointed as curator bonis, as attorneys are obliged to have Fidelity Fund certificates, which satisfies the Court’s requirement for security.

The process for appointment of a curator bonis can briefly be outlined as follows:

As mentioned, it is an application to the High Court, which application will be supported by an affidavit from the applicant (the person applying to court for the appointment of a curator bonis, for example John’s aged mother, as well as affidavits by two medical practitioners (one of which must be a psychiatrist) who have assessed John’s mental competence and can advise the Court on whether he is incapable of managing his own financial affairs.

Once the curator bonis has been appointed by the Court, he/she will essentially step into John’s shoes in all matters relating to his assets and financial affairs.

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)

DISMISSING AN EMPLOYEE FOR RACISM

DISMISSING AN EMPLOYEE FOR RACISM

There are different reasons why an employer might consider firing an employee. After teacher Keith Arlow had been fired from St John’s College in Johannesburg for being found to have victimised pupils based on their race, the question of dismissal due to racism was brought up.

Initially, Arlow was issued with a final written warning, stepped down from senior positions he held at the school and allegedly received a pay cut. However, Gauteng Education MEC Panyaza Lesufi, was not satisfied with this and prompted a dismissal.

When can someone be dismissed?

According to Schedule 8 of the Labour Relations Act (LRA), dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”.

Such serious offences could include: gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.

However, it’s important to note that even these offences will not automatically give the employer the right to dismiss. This is because the person carrying out the dismissal must consider:

  • Circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances etc.
  • The job’s context and purpose. Sleeping on the job, for example, might be serious for a security guard, but not for a clerk.
  • Other circumstances. For example, if an employee fell asleep because he had to work without a break.

Dismissing an employee for racism

In the case of Ceppwawu obo Evans v Poly Oak (2003, 12 BALR 1324), the employee was dismissed for making a racist comment during an altercation.

He was charged with using offensive and inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace. The arbitrator upheld the dismissal, despite the employee having apologised. The arbitrator also noted that the Labour Appeal Court (in Crown Chickens (Pty) Ltd v Kapp and others 2002, 11 LAC 6,12,3) had described racism in the workplace as “a plague and a cancer that must be rooted out”.

The court said that “courts should deal with racism and racial slurs in a manner that gives expression to the legitimate feelings of outrage experienced by reasonable people in a society against racism”.

Conclusion

Because of South Africa’s past, racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did commit the offence and that the act itself was serious enough for dismissal. Also, when the offending employee argues mitigating circumstances, the employer must give them consideration.

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)

Reference

“Racist St John’s College teacher fired with immediate effect”. Ndileka Lujabe, City Press. 2017-07-28.

http://city-press.news24.com/News/racist-st-johns-college-teacher-fired-with-immediate-effect-20170728. [Accessed on 11 August 2017]

“What Constitutes Intolerable”. The South African Labour Guide. Ivan Israelstam.

http://www.labourguide.co.za/general/398-in-the-firing-line-what-constitutes-intolerable. [Accessed on 11 August 2017]

Ceppwawu obo Evans v Poly Oak [2003, 12 BALR 1324]

CAN I SUE A SHOPPING CENTRE IF I SLIP AND FALL?

CAN I SUE A SHOPPING CENTRE IF I SLIP AND FALL?

By law, owners of businesses or property are required to take reasonable steps to ensure the safety of the general public. At minimum, owners or managers are required to warn the public of any potential dangers they have caused, are aware of or believe could occur.

So if a shopping centre has not met these requirements and you’re injured on their property as a result, you may have a valid claim. These are a few examples of the requirements shopping centres should have in place:

  • demarcate dangerous areas;
  • remove obstructions from walkways;
  • light an area adequately;
  • repair holes and cracks in the pavement; and
  • put up railings or barriers.

Would my claim be valid?

The law does not require individuals to watch their every step. It is reasonable to assume that people look around them as they browse grocery shelves at the shops. A successful slip and fall claim is mainly dependent on proving that the injured person was less negligent than the owner of the premises where they were injured.

Ask yourself the following questions:

  • Would a reasonable person, such as a property owner, foresee the reasonable possibility that his management or administration may injure another person, causing them to slip and fall?
  • Could the property owner have done something to prevent the accident that resulted in the claim. For instance, could the occurrence of a slippery floor have been prevented and could it have been mopped up before someone climbed the stairs?
  • Did the owner take steps to prevent the accident?

Details to collect if you want to make a claim

  • The details (name, contact number and address) of the person in charge of the premises.
  • Take photographs of the area where you were injured.
  • You must contact the legal representatives of the business.
  • You must get the relevant medical documents as well as the invoices detailing the procedures.

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)

Reference

http://www.dsclaw.co.za/personal-injury-claim-slip-and-fall

https://www.claimhelp.co.za/slip-and-fall/
DEMYSTIFYING THE EXECUTOR IN A DECEASED ESTATE

DEMYSTIFYING THE EXECUTOR IN A DECEASED ESTATE

During a person’s lifetime s/he will gather assets, in other words, belongings such as a house or a motor vehicle. These assets and liabilities will form part of a person’s estate. At the death of that person, his/her deceased estate must be administered, in other words, divided, distributed and controlled by someone. This person is called an executor.

However, the role of an estate executor and who can be appointed as one has been largely misunderstood.

What does the executor do?

“Executor” is the legal term for referring to the person, or people, nominated in your will to carry out the directives you set out in your will.

  1. This means that it is the executor’s responsibility to disburse your property to the mentioned beneficiaries in your will, but also obtain information on potential heirs, collecting and arranging payments, and approving or disapproving creditors’ claims.
  2. It is the executor’s duty to calculate and pay the estate tax, and to ensure that the correct documentation is filed with the relevant authorities.
  3. The executor is the individual that represents your estate.


Who can be appointed as the executor?

It has become normal to appoint a friend, family member or beneficiary to act as the executor, as they most likely have intimate knowledge of your estate and your affairs, but also, they will not rack up the fees that a legal body might accrue.

However, there is a misconception that you can avoid the fees by appointing a family member as the estate executor, but this could also mean that you are deferring the cost to the nominated family member.

  1. Family members appointed as executors on larger estates immediately find themselves out of their depth, and not only end up hiring a professional executor, but may also pay more for these services than necessary.
  2. A simple way to address this is by appointing a “professional” executor during your lifetime. This allows you to negotiate the executor fees.

If you appoint a family member, make sure that they understand that they will have to appoint a professional agent, and that they should negotiate the fee and be very cautious of agreeing to a fee arrangement in terms of which the professional agent charges their professional fee, instead of the legislated scale.

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)

Reference

https://www.legalwise.co.za/help-yourself/legal-articles/duties-executor

http://www.fin24.com/Money/Wills-and-trusts/Role-of-executor-of-deceased-estate-20150513

MHI FRONT RUNNERS IN DEFAMATION ON SOCIAL MEDIA

MHI FRONT RUNNERS IN DEFAMATION ON SOCIAL MEDIA

Compiled by Denver Titus 

MHI INVOLVED IN THE DEVELOPMENT OF THE COMMON LAW OF DEFAMATION INVOLVING PUBLICATION ON SOCIAL MEDIA 

On 21 November 2016 Judge Dennis Davis handed down judgement in the Western Cape High Court in the matter between WALDIS AND ANOTHER v VON ULMENSTEIN 2017 (4) SA 503 (WCC).

In this case an urgent application was instituted by Le Chocolatier, a producer of premium chocolate products, and its founder, Daniel Waldis (“the Applicants”), against Christiane Von Ulmenstein, represented at the hearing thereof by MHI Attorneys and Advocate Adam Brink. Von Ulmenstein is a blog writer and restaurant reviewer who writes generally about tourism, restaurants and wine, focusing on Cape Town and the winelands area. The relief the Applicants sought was an order to interdict her to remove the allegedly defamatory post made on her blog as it then was: www.whalecottage.com [now www.chrisvonulmenstein.com].

Extensive case law exists for instances of defamation published in traditional forms of publication such as newspapers and magazines. However, case law in respect of modern forms of publication such as Facebook, Twitter, and in the present case, blogs, is scant. These modern forms of publication represent a novelty in our law, which is largely undeveloped in terms of these forms of publication. Accordingly, MHI Attorneys is proud to have been part of the development of this novel area of South African law, which will be of use to future litigants.

Facts:

Von Ulmenstein’s blog post dated 23 July 2015 followed on an independent article published in July 2015 in Noseweek, a national magazine, which focused on allegations regarding the mislabelling by Le Chocolatier of its chocolates as ‘sugar-free’ which allegedly was not the case. Von Ulmenstein’s article focused on the same subject matter and highlighted how such practices may be life-threatening to diabetics. The article further challenged the labelling of said chocolates as organic – contending it was a fraudulent claim by Le Chocolatier. Von Ulmenstein further challenged whether Le Chocolatier’s chocolates were handmade. Von Ulmenstein wrote that these chocolate slabs were imported as chocolate bars from abroad and remade into slabs prior to being sold by Le Chocolatier. Her blog post lastly contained paragraphs of alleged financial difficulty Le Chocolatier faced at the time and described its founder as a fraud looking for business opportunities even at the expense of the health of its consumers.

The Applicants argued that the blog post was defamatory as it attempted to portray them as dishonest and fraudulent, because Von Ulmenstein had not properly verified the facts contained therein as accurate. The Applicants further argued that the blog post infringed their right to privacy and Le Chocolatier’s right to take part in day-to-day commercial activity without the fear of being unfairly defamed. Von Ulmenstein’s defence was that her blog post constitutes fair comment. Furthermore, the post is truthful and made in the public interest as it relates to public health.

The Applicants countered that von Ulmenstein cannot plead truth and public interest as a defence, because the information was already in the public domain due to publication by Noseweek, as aforementioned. The Applicants further contended that her post was untruthful and made solely with the intention to defame the Applicants.

Ruling:

Judge Davis held that the issue of whether a product is indeed sugar-free and diabetically friendly is a matter of public interest. The fact that the sugar content of Le Chocolatier’s chocolates had been published in Noseweek prior to Von Ulmenstein’s blog post, does not mean that Von Ulmenstein’s post was no longer in the public interest. Judge Davis further held, where there are persistent allegations that a product is not what it claims to be, it continues to be a matter of public interest.

In respect of a report submitted and relied upon by the Applicants regarding the sugar content of its chocolates, Judge Davis found the report to be ‘extremely vague’. A further report submitted and relied upon by the Applicants, compiled by the Cape Winelands District Municipality following an inspection of Le Chocolatier’s products, conducted in terms of s 82 of the National Health Act 61 of 2003, was held to show that there was some form of mislabelling of the Applicants’ products at some point in time, which necessitated relabelling. Accordingly, Judge Davis held that the defences of truth and public interest, as well as fair comment, could be relied upon by Von Ulmenstein in the circumstances.

However, Judge Davis found that parts of the blog post were beyond justifiable under the abovementioned defences and that these parts were accordingly defamatory. To this extent Judge Davis ordered that Von Ulmenstein delete the parts of the blog post relating to the chocolates being life-threatening to diabetics and relating to Le Chocolatier’s founder being a fraud who looks for business opportunities even at the expense of the health of his customers.

Von Ulmenstein was awarded costs in respect of a wasted hearing on 12 May 2016. However, no other award in respect of costs was made.

Conclusion:

The judgement represents an innovation in respect of the relief granted. Judge Davis opted to allow the entire post to remain published save for the above two offending sentences. Accordingly, Judge Davis did not consider the defamatory parts as having tainted the entirety of the blog post, and the publication of the remainder of the post was justifiable. Such an order is only possible with modern forms of publication which allow for subsequent editing thereof, as opposed to traditional forms of publication such as newspapers and magazines which require the entire article to be retracted.

In cases of defamation, the constitutional right to privacy and, where a juristic person, the right to take part in day-to-day commercial activity without the fear of being unfairly defamed, are at odds with the constitutional right to freedom of expression. This judgement favours freedom of expression, as it does not unduly censor the entire post. Instead, the judgement serves to indicate that there are limits to one’s right to freedom of expression and where these limits are crossed, the right to freedom of expression has been exercised unjustifiably and infringed the rights of another. To this extent, the courts will intervene.

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)