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Month: November 2017

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/