Category: Legal

WANNEER JOU BESKERMING SE BYT JOU KAN KOS!

 

Die stygende misdaadsyfer in Suid-Afrika is vir niemand “nuwe” nuus nie. Wat wel nuuswaardig is, is die toename in honde wat mense aanval. Verskeie faktore kan aanleiding tot dié stygende syfers gee. Van die redes wat voorgehou word vir die toenemende voorkoms van aanvalle deur honde is die verhoogde misdaadsyfer en die aankoop van groter en kwaaier honderasse as gevolg daarvan, asook die groeiende belangstelling in sekere gemeenskappe in onwettige hondegevegte.

Wanneer ‘n individu deur ‘n hond gebyt word kan dit tot groot emosionele-, fisiese- en eiendomskade lei. Wat staan u (die publiek) egter te doen indien u deur ‘n hond gebyt word? Wat is u regte? Is daar bepaalde stappe wat u kan volg indien u deur ‘n hond gebyt is? Hierdie artikel het ten doel om as ‘n informatiewe leesstuk te dien, om u in te lig rakende die verskillende regsaspekte wanneer u die onverwagte slagoffer van ‘n hondbyt is.

Die slagoffer van ‘n hondbyt kan aanspraak maak op die gemeenregtelike aksie bekend as die (actio de pauperie). Hierdie gemeenregtelike aksie is gebaseer op die eienaar se skuldlose aanspreeklikheid vir sy/haar hond se optrede. Vir die aksie om suksesvol te wees moet die slagoffer (hierna na verwys as die Eiser) egter verskeie dinge bewys. Die belangrikste sluit in:

1. Eienaarskap van die hond.

2.Dat die hond in stryd met sy natuur opgetree het. In hierdie verband moet die Eiser en die Eienaar (verweerder ) kennis neem daarvan dat ‘n mak huisdier, in dié geval die hond, teen sy natuur sou optree indien die huisdier iemand byt.
3.Dat die hond ‘n mak huisdier is.

4.Dat die hondbyt die Eiser skade berokken het.

Daar is egter ook ‘n aantal verwere wat geopper kan word teen die bogenoemde aksie, naamlik:

1.Indien die hond sy eienaar, en/of eiendom sou verdedig teen onwettige betreding/inbraak.

2.Waar uittarting aanleiding daartoe gee dat die hond reageer op die stimuli en daarvolgens optree teenoor die persoon wat die handeling uitvoer.

Daar rus geen onus op die beseerde Eiser om die vreemde optrede van die hond te verduidelik nie.

Wanneer hierdie tipe eise egter ingestel word is dit raadsaam om nie net met die hoofaksie (actio de pauperie) alleen te volstaan nie, maar om ook ‘n alternatiewe eis, gebaseer op ‘n tweede gemeenregtelike aksie, in te stel. Hierdie gemeenregtelike aksie staan bekend as die (actio legis aquiliae). Laasgenoemde aksie word ingestel waar die Eiser nie kan bewys dat ‘n bepaalde persoon die eienaar van die hond is nie, of indien daar nie bewyse gelewer kan word dat die hond teen sy natuur opgetree het nie. (Actio legis aquiliae stel) die Eiser daartoe in staat om ‘n eis van nalatigheid teen die persoon wat ten tye van die voorval in beheer van die hond was, in te stel. Die eis sal egter slegs suksesvol wees indien nalatigheid bewys kan word.

Uit die bogemelde is dit dus duidelik dat Eiser twee duidelike aksies het indien hy/sy deur ‘n hond gebyt word, naamlik die (actio de pauperie) en (actio legis aquiliae). Daar is egter (soos genoem in die artikel) verskeie vereistes waaraan hierdie aksie moet voldoen. Om skade te voorkom is dit egter ook belangrik dat ‘n honde-eienaar voorsiening moet maak vir publieke aanspreeklikheidsversekering om sy/haar boedel teen skadevergoedingsaksies te beskerm. Dit sal raadsaam wees om in geval van ‘n hondbytvoorval, ‘n prokureur te raadpleeg wat spesialiseer in liggaamlike beseringseise om die eiser van advies te voorsien

HARASSING YOUR SOCIAL MEDIA HARASSER

 

“About a month ago a person started sending me inappropriate e-mails and posting lewd comments and messages on my Facebook and Google Plus pages. I’ve tried blocking the person and telling them to stop, but he or she keeps changing their email address and user profile and keeps coming back. I don’t even want to look at my phone or computer anymore. Is there anything I can do?”

Social media harassment has been on the rise with victims suffering at the hands of unknown harassers hiding facelessly behind an electronic façade from where they do their dirty work – changing their online persona as necessary to continue harassing their victims and evade identification. Given that the harasser is unidentifiable, victims are unsure as to what they can do to stop the offending action.

The good news is that victims are not without recourse. In 2013 the Protection from Harassment Act (“PHA”) came into operation. PHA seeks to assist victims of harassment from known and unknown harassers.

The PHA definition of harassment is wide and includes amongst other things, directly or indirectly engaging in conduct that causes harm or inspires the reasonable belief that harm may be caused to the victim or a related person through engaging in verbal, electronic or any other communication, irrespective of whether or not a conversation ensues; the sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the victim or a related person; or conduct which amounts to sexual harassment. This definition will thus include the cyberbullying and online harassment as you have described.

PHA provides for the issuing of a protection order and the enforcement thereof by our Magistrates Courts in what is a relatively informal and cost effective process, which can be launched by any person by completing the prescribed forms with the Clerk of the Court. The matter will then be placed before a Magistrate who can issue a protection order against a perpetrator.

Where the perpetrator is unknown and is using social media and electronic platforms to conduct the harassment from, PHA empowers the Magistrates Court to issue a directive to electronic communication service providers to provide the full details as per their records of the perpetrator using the accounts or email address through which the harassing action is being conducted. PHA also empowers the Court to order the SAPS to conduct an investigation into the harassment in order to identify the perpetrator. PHA further requires the electronic communication service providers and SAPS to report to the Court after having been ordered to provide the information and/or conduct the investigation.

Besides identifying the details of an account holder, it is as yet not clear what the obligations of a social media service provider are to protect a victim from harassment via their site and whether they can incur liability. This aspect has not served before our Courts, but international case law relating to defamation could perhaps give guidance here in that in countries such as the USA and United Kingdom the service providers who provide a platform for defamatory statements to be published and then do not remove them, after being informed that the nature of the statements are defamatory and/or untrue, have been held liable.

For now it is advisable that you consider obtaining legal advice in respect of the possibility of enforcing your rights in terms of PHA. You can also consider informing the social media service provider of the harassing action with a request to take steps against the relevant account holder and to remove the harassing comments. For many of these service providers their good name and reputation will ensure that they take improper conduct via their platforms seriously and also take steps to curb such conduct.

Commercial Mediation: It’s just good business


My company is often embroiled in legal battles that end in expensive litigation and drag on for many years. Legal disputes are part of our business environment, yet it would be nice if we could resolve some of these disputes faster. I’ve heard about mediation, but am not sure if this would just be delaying the inevitable litigation to follow?”

Businesses around the world are increasingly opting for mediation as a method of commercial dispute resolution. Likewise in South Africa, there is a substantial scope for mediation to become a real solution for businesses to resolve their commercial disputes. In fact, in Africa, mediation is generally a deeply rooted element of tribal community structures and it makes sense that these traditions also pervade our commercial dealings.

The structure of the commercial mediation process offers parties the opportunity of resolving their disputes as well as saving a business relationship. The parties come together to try, with the help of a skilled mediator, to resolve their differences before formal legal or arbitration proceedings are commenced. This leaves room for a viable business relationship to survive the dispute, which, once parties come to formal legal blows, is often no longer possible.

Good corporate governance demands that company directors ensure that disputes are resolved as effectively and efficiently as possible and commercial mediation can provide options for parties generally not available through litigation or arbitration and so contribute to good governance. Likewise the new Companies Act also encourages the use of mediation by providing for alternative forms of dispute resolution in respect of company affairs, including the use of mediation.

With litigation becoming increasingly expensive and time-consuming, and arbitration results often ending back in court for review, legal practitioners are being forced to look at alternative ways of assisting clients to resolve their commercial disputes, with mediation increasingly coming up on top.

The success of commercial mediation in countries like the USA, Canada and Australia can generally be attributed to the benefits that commercial mediation holds for parties, such as the ability to undertake the process voluntary, confidentially and without prejudice to any of the rights of the parties. It also affords parties greater control over the outcome of the proceedings. Given its voluntary nature, it is non-binding unless the parties reach a joint settlement agreement. The process allows the parties, with the help of a skilled mediator, to deal with their issues and raise their respective commercial interests to try and reach a joint resolution to their dispute. This allows the possibility of a continuing business relationship as well as an agreed solution that works for both parties. If mediation does not work, the normal remedies still remain open to the parties, but given the lower costs and risks relating to mediation, it is an option well worth considering.

Accordingly, to address you concerns regarding your company’s current litigation history, it may be worth referring a dispute to mediation and assessing the outcome thereof against your current litigious approach, costs and time in managing your commercial disputes.

Mosdell, Parma & Cox
T: +27 044 5331101
F: +27 044 5331115
E: ppama@mpc.law.za

WAT SE DIE WET : Wanneer jou beskerming se byt jou kan kos!

Die stygende misdaadsyfer in Suid-Afrika is vir niemand “nuwe” nuus nie. Wat wel nuuswaardig is, is die toename in honde wat mense aanval. Verskeie faktore kan aanleiding tot dié stygende syfers gee. Van die redes wat voorgehou word vir die toenemende voorkoms van aanvalle deur honde is die verhoogde misdaadsyfer en die aankoop van groter en kwaaier honderasse as gevolg daarvan, asook die groeiende belangstelling in sekere gemeenskappe in onwettige hondegevegte.

Wanneer ? individu deur ? hond gebyt word kan dit tot groot emosionele-, fisiese- en eiendomskade lei. Wat staan u (die publiek) egter te doen indien u deur ? hond gebyt word? Wat is u regte? Is daar bepaalde stappe wat u kan volg indien u deur ? hond gebyt is? Hierdie artikel het ten doel om as ? informatiewe leesstuk te dien, om u in te lig rakende die verskillende regsaspekte wanneer u die onverwagte slagoffer van ? hondbyt is.

Die slagoffer van ? hondbyt kan aanspraak maak op die gemeenregtelike aksie bekend as die actio de pauperie. Hierdie gemeenregtelike aksie is gebaseer op die eienaar se skuldlose aanspreeklikheid vir sy/haar hond se optrede. Vir die aksie om suksesvol te wees moet die slagoffer (hierna na verwys as die Eiser) egter verskeie dinge bewys. Die belangrikste sluit in:

1. Eienaarskap van die hond.
2. Dat die hond in stryd met sy natuur opgetree het. In hierdie verband moet die Eiser en die Eienaar (verweerder ) kennis neem daarvan dat ? mak huisdier, in dié geval die hond, teen sy natuur sou optree indien die huisdier iemand byt.
3.Dat die hond ? mak huisdier is.
4.Dat die hondbyt die Eiser skade berokken het.

Daar is egter ook ? aantal verwere wat geopper kan word teen die bogenoemde aksie, naamlik:
1.Indien die hond sy eienaar, en/of eiendom sou verdedig teen onwettige betreding/inbraak.
2.Waar uittarting aanleiding daartoe gee dat die hond reageer op die stimuli en daarvolgens optree teenoor die persoon wat die handeling uitvoer.

Daar rus geen onus op die beseerde Eiser om die vreemde optrede van die hond te verduidelik nie.

Wanneer hierdie tipe eise egter ingestel word is dit raadsaam om nie net met die hoofaksie (actio de pauperie) alleen te volstaan nie, maar om ook ‘n alternatiewe eis, gebaseer op ? tweede gemeenregtelike aksie, in te stel. Hierdie gemeenregtelike aksie staan bekend as die actio legis aquiliae. Laasgenoemde aksie word ingestel waar die Eiser nie kan bewys dat ? bepaalde persoon die eienaar van die hond is nie, of indien daar nie bewyse gelewer kan word dat die hond teen sy natuur opgetree het nie. Actio legis aquiliae stel die Eiser daartoe in staat om ? eis van nalatigheid teen die persoon wat ten tye van die voorval in beheer van die hond was, in te stel. Die eis sal egter slegs suksesvol wees indien nalatigheid bewys kan word.

Uit die bogemelde is dit dus duidelik dat ? Eiser twee duidelike aksies het indien hy/sy deur ? hond gebyt word, naamlik die actio de pauperie en actio legis aquiliae. Daar is egter (soos genoem in die artikel) verskeie vereistes waaraan hierdie aksie moet voldoen. Om skade te voorkom is dit egter ook belangrik dat ‘n honde-eienaar voorsiening moet maak vir publieke aanspreeklikheidsversekering om sy/haar boedel teen skadevergoedingsaksies te beskerm. Dit sal raadsaam wees om in geval van ‘n hondbytvoorval, ‘n prokureur te raadpleeg wat spesialiseer in liggaamlike beseringseise om die eiser van advies te voorsien en die aksie namens die eiser in te stel.

QUICKLAW GUIDES – Retrenchment

What is retrenchment? Retrenchment is a form of dismissal due to no fault of the employee, it is a process whereby the employer reviews its business needs in order to increase profits or limit losses, which leads to reducing its employees.
The employer must give fair reasons for making the decision to retrench and follow a fair procedure when making such a decision or the retrenchment may be considered unfair.

When may employees be retrenched?
An employer may retrench employees for “operational requirements”.
Operational requirements means requirements based on the economic, technological, structural or similar needs of an employer, in other words, the business needs of the employer:
An example of economic needs would include a drop in sales or services of the employer, or closure of business.
An example of technological needs would include new technology developed that can replace some employees.
An example of structural needs would include restructuring the business.
When the court has to decide whether or not the employer’s decision to retrench was fair it looks at:
whether the reasons for retrenchment were genuine;
whether the retrenchment was unavoidable.

What is considered to be a fair procedure for retrenchment?
The employer must consult with the employees who are likely to be affected by the retrenchment, or their workplace forum, registered trade union or elected representatives, or any person elected in terms of a collective agreement (“consulting employees”).
The employer must issue a written notice inviting the consulting employees to consult and disclosing all the necessary information for such consultation.
The employer and consulting employees must engage in a consensus-seeking process on certain matters contained in the notice.
The employer must allow the consulting employees to make representations about the matters contained in the notice and other matters relating to the proposed retrenchment.
The employer must respond to the consulting employees’ representations. If the employer disagrees with the consulting employees, it must state the reasons for disagreeing with them.
The employer must select the employees to be dismissed based on a selection criteria agreed with the consulting employees or a selection criteria that is fair and objective.
After the consultation process has been exhausted, the employer may make its decision to retrench, and then issue a notice of retrenchment to the affected employees.
The law provides for additional procedures that the employer, employing more than 50 employees, must follow when making a decision to retrench.

What should the notice to consult look like?
The employer must give notice to the affected employees of the need for the proposed retrenchment.
This notice should be in writing and contain the necessary information for the consulting employees to make representations at the consultation.
The necessary information includes, but is not limited to:
the reasons for the proposed retrenchment;
options considered by the employer to avoid the proposed retrenchment and the reasons for rejecting these options;
the number of employees likely to be affected and their positions;
the proposed selection criteria for selecting employees for retrenchment;
the time when the retrenchment is likely to take effect;
the proposed severance pay;
any assistance that the employer proposes to offer the employees who are retrenched;
the possibility of future employment of the employees who may be retrenched;
the number of employees of the employer; and/or
the number of employees that have been retrenched for the last 12 months.
If the information on the notice is not sufficient, the consulting employees may request the employer to disclose more information. For example, the employees may request the employer’s audited financial statements, where the reason for the proposed retrenchment is for cutting costs.

What does it mean to consult?
Consultation is a joint consensus-seeking process between the employer and the consulting employees. This means that the consulting employees have to come up with suggestions in respect of the proposed retrenchments, and the employer has to respond.
During the consultation there are certain matters that should be discussed, such as:
suggestions to:
avoid retrenchment, for example, no new appointments, early retirements, voluntary retrenchment, adjusting work hours or no overtime;
decrease the number of employees to be retrenched;
change the timing of the retrenchment, for example, the time needed to understand the information, make representations, and contribute in a meaningful way;
mitigate effects of retrenchment, for example, when the employer decides to retrench the employees, the employer may provide time off to attend interviews, training, or issuance of reference letters;
the selection criteria of which employees are to be retrenched, for example, the principle of “last in, first out” (“LIFO”), length of service, skills, qualifications and/or experience can be used;
severance pay for the retrenched employees. The employees may suggest a bigger amount, than the amount specified by law. Legalwise.co.za•

PROTECT YOUR BUSINESS FROM CRIME

The high crime rate is a reality of doing business in South Africa. Smaller companies, with fewer resources to secure themselves, are particularly vulnerable. Find out what basic measures you can put in place to make your business less of a target.

Security is one of the most important aspects of running a business, so it’s not an area where you can afford to cut corners. There are various ways of assuring your company and your employees’ safety.

Prevent employee theft

One of the most common threats to the livelihood of a small business is internal theft and fraud. Research shows that the biggest pre-emptor of theft is opportunity, so minimise them:

Implement internal controls. Put strict policies in place to safeguard assets and financial reporting. For example:

Don’t allow only one person to record and process transactions
Restrict access to financial assets and information to authorised employees only
Develop internal controls for initiating, authorising and reviewing transactions
Do regular stock-taking to ensure all supplies and equipment are accounted for
Have a strict recruitment procedure. Don’t be lax about who you bring into your company. Honesty and integrity should be right up there with skill requirements for the job. To sift out the good from the bad, include pre-employment checks in your hiring policy:

Check to see if the person has a criminal record involving theft or fraud
Verify that educational qualifications are from recognised institutions
Call at least two previous employers to confirm his position, length of employment and why he left
As much as you would like to trust the people working for you, it’s important to enforce these policies and take temptation out of the equation. If you do find that an employee has been stealing from you, seek legal advice about how to deal with it.

Bring the community together

Crime against businesses affects everyone living in the community. Your company creates jobs and the security measures you take will improve the safety of the vicinity in general.

Team up with other local businesses and share security tips, incidents of crime or suspicious activities, and potentially even the costs of hiring security companies to patrol the area
Remind local residents that your security also benefits them. Encourage them to report crime to the police and inform you of any incidents
Community Policing Forums have proven very effective in reducing crime in various areas. Contact other businesses, community leaders and the local police station to find out how you can work together to combat crime
Establish a good relationship with the neighbourhood police. Support their crime-busting initiatives and ask them to regularly update you on criminal activity in the community
Other tips

Hire permanent security guards to patrol the premises and keep track of people coming in and out. Make sure that these guards have been properly checked out
Install CCTV cameras to ‘keep an eye’ on the property, especially at night
Spotlights with motion sensors can act as a deterrent for would-be criminals
Install tracking devices on all company vehicles and send your drivers on an anti-hijacking course
Vary the times of doing and taking deliveries, when you do your banking, etc. Having the same schedule every day can make you a target for robbery
Encourage employees to be vigilant when entering and leaving the premises, and to make sure they have secured their property and vehicles
And finally, make sure your business is adequately insured against crime. There’s nothing worse than having to pay out of your own pocket to replace stolen goods or repair related damage
You don’t have to be a victim of crime. Find ways to be part of the solution to make your business and the broader community more secure.

(Provided by Business Partners Ltd, South Africa’s leading investor in SMEs) •

GUARDING YOUR INTELLECTUAL PROPERTY

Theft of confidential information and trade secrets can be just as damaging to your business as embezzlement or other employee fraud.  Help protect your competitive advantage with these tips:

Buy paper shredders … and use them: Putting unshredded copies of sensitive or confidential documents in the garbage opens up a range of security issues.
Have a plan for terminated employees:
Don’t let a disgruntled ex-employee become a security threat. Have a plan in place to keep a person from leaving your company with confidential documents. Some steps to follow include:
Where there is a high risk, have the person leave the company immediately upon termination.
Make arrangements for the immediate return of keys and any confidential company information.
Remove the person’s password from your computer network immediately.
Use computer passwords:
Require your employees to use passwords to access your computers or your network. This will serve to keep unauthorised people away from important files.
Have all employees sign non-disclosure agreements:
Make sure employees understand that theft of intellectual property is as serious to your business as theft of physical property. Use a non-disclosure agreement or a non-disclosure clause in an employment contract, to spell out employees’ responsibilities regarding confidential or trade secret information. Be sure you define what your company considers to be confidential. This is critical, since it clearly differentiates which information belongs to your company and which belongs to the ex-employee. The agreement also should outline steps the employee must take to maintain confidentiality, such as using computer passwords, not removing sales lists from premises, not copying documents to disk etc.
Keep tabs on your documents:
Set and enforce strict procedures for access to confidential or trade secret information. Allow only those who need certain information to see it.
Label key electronic documents (such as your customer database) as “read only” or password lock the documents so they cannot be altered or written to disk.
Don’t tempt prying eyes:
Don’t make it easy for people who aren’t supposed to see confidential documents to snoop. Never leave documents lying around. File things away when you’re done with them or when you’re away from your desk. Lock your filing cabinet and your desk drawer when you’re away. Close computer files when they are not being used and never leave a file on your screen when you go away from your desk.

(Henry Grobler 044 873 6112) •

The Law and Debt Collecting …Part 3

Emoluments attachment orders in South Africa. An emoluments attachment order in South African law is a court order whereby the judgment creditor is able to attach part of the salary or wages of the judgment debtor. Once an emoluments attachment order has been granted, the employer of the judgment debtor (who is referred to as the garnishee) is obliged (on a continuing basis, and until such time as the judgment debt has been paid in full) to pay a certain portion of the judgment debtor’s salary or wages to the judgment creditor.

The employer is known as the emoluments attachment debtor or garnishee. It is important to distinguish between the employer as an emoluments attachment order debtor, or garnishee, and the actual judgment debtor. Emoluments attachment orders are signed by the judgment creditor, or by a nominated attorney, as well as by the clerk, and are served by the sheriff on the emoluments attachment debtor or garnishee. An emoluments attachment order may be executed against the emoluments attachment debtor or garnishee as if it were a judgment of the court. The order is always subject to the rights of the judgment debtor, emoluments attachment debtor or any interested party to dispute the validity or correctness of the order.

The emoluments attachment order “is a good way of proceeding against a judgment debtor who does not possess sufficient attachable assets to pay off a significant portion of the debt.” Because the money goes directly from the employer to the judgment creditor, the latter’s attorney does not have to worry about the judgment debtor spending it before it can be attached. The judgment debtor also has an interest in retaining his job. As long as he does so, the debt will continue to be paid.

In terms of section 65J(2)(a) and (b), an emoluments attachment order will not be issued unless the judgment debtor has consented thereto in writing, or the court has so authorised and does not suspend the authorisation;
Unless the judgment creditor or an appointed attorney has sent a registered letter to the judgment debtor at his or her last known address informing the judgment debtor of the amount of the judgment debt and the costs which remain unpaid, and also warning that an emoluments attachment order will be issued if the mentioned amount is not paid within seven days after the date on which that registered letter has been posted; and
filed with the clerk an affidavit or affirmation wherein is indicated
the amount of the judgment debt on the date of the order laying down the specific instalments;
the costs, if any, incurred since that date; and
the balance owing; and
it is declared that the provision above, requiring the sending of the registered letter, have been complied with on the date specified therein.

Once the emoluments attachment order has been issued and served on the emoluments attachment debtor or garnishee, a certain amount will be deducted from the judgment debtor’s salary by the garnishee at the end of every month, and paid over to the judgment creditor. The garnishee is entitled to deduct a five per cent commission for this service.

The court may on good cause suspend, amend or rescind the order, especially where the judgment debtor can show that, after the deduction, there are insufficient means available to support the judgment debtor and any dependants. Where the judgment debtor leaves the employment of the garnishee, the judgment debtor must advise the judgment creditor of the name and address of the new employer. The judgment creditor may then serve a certified copy of the order, together with a certificate of the balance of the debt owed, on the new employer. The new employer, as the new garnishee, is then bound by the order.

Difference between emoluments attachment order and garnishee order[edit]
In terms of the procedure adopted in the Magistrates’ Courts, there is a distinction between emoluments attachment orders (which relate to the attachment of the salary or wages owing or accruing to the judgment debtor by a third party), and garnishee orders (which relate to the attachment of all the other kinds of debts which may be owed to the judgment debtor by a third party).
In essence, an emoluments attachment order is a procedure whereby a debt may be collected from a judgment debtor. The order is served on the debtor’s employer (the garnishee), who is instructed to make regular weekly or monthly deductions from the debtor’s salary and to pay these deductions over to the judgment creditor.

A garnishee order, on the other hand, allows a judgment creditor to attach a money debt owed to the judgment debtor by a third party. The order is served on the third party and attaches money owed by the third party (who is also known as a garnishee) to the judgment debtor. The third party or garnishee is then obliged to hand over to the judgment creditor directly as much of the attached money debt as is necessary to satisfy the judgment debt and costs.

(Chris Schutte: 076 917 9928)
Information obtained from www.cfdc.org.za (with written permission).

Council for Debt Collectors•

Jurisdiction of the CCMA to adjudicate benefit disputes expanded

The confusion that has existed for years between employers and employees over the scope of what the term “benefits” in section 186(2)(a) of the Labour Relations Act entails has finally been resolved by the Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2013) 34 ILJ 1120 (LAC).

This case also dispelled the fallacy that in order to have an unfair labour practice claim against an employer there has to be an employment relationship in existence at the time that the employee declared and referred an unfair labour practice dispute to the CCMA.

Until very recently, the position in South African labour law was that the Labour Relations Act only allowed an employee to refer an unfair labour practice dispute relating to employment benefits to the CCMA if such benefits were provided for in the employee’s contract of employment, the employer’s conditions of employment, collective agreement or any applicable legislation. If the benefits in dispute could not be traced back to any one of these categories, such a dispute would be classified as a dispute of mutual interest which could only be pursued by way of industrial action, and the CCMA would not have the necessary jurisdiction to arbitrate such a dispute except to conciliate it. A dispute of mutual interest is a dispute where an employee wishes to assert a right which he does not have in terms of any legislation, policy or employment contract, for example, an increment or bonus when there is no provision for such in the contract of employment. The reason for this distinction is based on the view that a wider definition of the term “benefits” could undermine the employees’ right to strike which is constitutionally entrenched.

The issue for determination in the Apollo case at the CCMA was whether an employee’s entitlement to claim benefits under an early retirement scheme fell within the ambit of the unfair labour practice provisions. Due to a decline in trade Apollo Tyres was forced to start with an early retirement scheme for monthly paid staff between the ages of 46 and 59 years. After being told that she did not qualify for the scheme, Ms Hoosen resigned and referred a dispute to the CCMA, claiming that the company’s refusal to pay her the amount specified in the voluntary retrenchment scheme amounted to an unfair labour practice relating to the provision of benefits. Apollo Tyres argued that the CCMA lacked jurisdiction to arbitrate the matter as the voluntary retrenchment scheme was not a “benefit” as contemplated by the Labour Relations Act. The commissioner however ruled that the company had committed an unfair labour practice by not admitting Ms. Hoosen to the scheme, and ordered Apollo Tyres to pay her the specified severance package.

The Labour Appeal Court considered the matter and held that the retirement benefit in Apollo Tyres had been offered to all monthly paid employees between the ages of 46 and 59. The employee was 49 and was paid a monthly wage. Apollo Tyres also had a discretion as to whether or not to grant the benefit. The issue was whether that discretion had been exercised unfairly, for example, whether the employer had acted arbitrarily, capriciously or for no justifiable reason. The Labour Appeal Court concluded that Appollo Tyres had shifted the goal posts and had provided no credible reason for not granting the employee an early retirement package. The court accordingly held that Apollo Tyres had perpetrated an unfair labour practice by excluding the employee from the early retirement scheme and dismissed the appeal with costs.

In arriving at its decision the Labour Appeal Court enunciated the following important legal principles:

A proper approach is to interpret the term “benefit” to include a benefit to which an employee is entitled (from contract or from legislation, including rights judicially created) as well as an advantage or privilege which the employee has been offered or granted in terms of a practice subject to the employer’s discretion. Those judgments in which a contrary approach was adopted are accordingly wrong.
Employees who wish to use unfair labour practice jurisdiction to claim a right to be promoted, receive training or be granted employment benefits, do not have to prove a right to be promoted or trained if the fairness of the employer’s conduct is challenged.
The concern that a wide definition of “benefit” will undermine the right to strike is no longer justified.
Disputes over the provision of benefits fall into two categories. Where the dispute is not based on an allegation that the grant or removal of a benefit is unfair, strike action is the remedy. Where the dispute concerns the fairness or otherwise of the employer’s conduct, it can be adjudicated through arbitration.

The Labour Appeal Court went further and held that there are at least two instances of conduct by an employer relating to the provision of benefits that may be subjected to scrutiny by the CCMA under its unfair labour practice jurisdiction:

The first instance is where an employer fails to comply with a contractual obligation that it has towards an employee. In this instance, an employee would still only be able to refer a dispute to the CCMA for adjudication if such a dispute is based on a right or benefit contained in the contract of employment, or alternatively in law.
The second situation is where the employer exercises a discretion that it enjoys under the contractual terms of a scheme conferring a benefit. In this instance, even where the employer enjoys a discretion in terms of a policy or practice relating to the provision of benefits, such conduct can be scrutinized by the CCMA.

As a result, the term “benefit” in the Labour Relations Act has now been expanded to include not only existing advantages or privileges to which an employee is entitled to as a right, but also those advantages and privileges granted in terms of a policy or practice over which the employer has a discretion. Employers should thus exercise extra care when exercising their discretion and implementing policies relating to benefits.

This judgment may also be seen to have potentially opened the floodgates for referrals by unsatisfied employees to the CCMA regarding privileges and advantages awarded by an employer at its discretion. Importantly thougth, the unfair labour practice jurisdiction cannot be used by employees to assert an entitlement to new contractual terms such as new benefits, new forms of remuneration or new policies not previously provided for by the employer.

It is clear that employers faced with having to exercise a discretion as to whether to grant certain benefits or not must exercise such discretion in a fair, transparent and justifiable manner to avoid falling foul of the unfair labour practice provisions of the Labour Relations Act.•

The complexity of contracting internationally

Globalisation has opened the door to individuals and businesses to become bolder and more internationally active. This implies a greater degree of international contracting. Although substantial benefitsbenefits can arise from expanding your business internationally, it can also present many difficulties if you are unaware of the legal consequences of contracting in the international arena, particularly where you are involved in a contractual dispute with an international party. Private international law regulates the dealings between people of different nations and the question of which legal system should be applied to a specific legal situation. It is not a segment of public international law and as such is not governed by international conventions that different States signsign and incorporate into their law. For this reason, private international law does not provide universal solutions in respect of international contracting. Private international law depends predominantly on numerous concepts and case law from which it draw its authority. These sources merely serve as guidelines to determine which legal system should reign over a specific relationship. Fortunately, the use of conventions to regulate private international law is becoming a more attractive notion, but until this is followed by all nations, the lack of uniformity will continuecontinue to cause uncertainty. The result is, that where international dealings are not conducted correctly, a lengthy procedure may ensue to determine which legal system is suitable and just to resolve the dispute. A contract cannot exist without an empowering legal system whose norms specify that a contractual obligation exists. In other words, a contract draws its authority from a legal system. This can be illustrated by way of example: Person A, living in South Africa, and Person B, who is a resident of Italy, wish to enterenter into a contract with one another. Both parties agree that the contract is to be executed in China. Later on in their contractual relationship, a dispute arises. Which legal system prevails? South African law, Italian law or Chinese law? In such a case, private international law is implored to determine the law to govern the contract.

The solution is encapsulated in a concept known as ‘party autonomy’. When a court has to determine which law governs a contract, there are three possibilities: 1.Expressly chosen law; 2.Impliedly chosen law; or 3.The most closely connected law.

The first solution would require the parties to ensure that the desired legal system is expressed in their contract. This means stating the governing system specifically in their contract and eliminating any doubt as to the possibility of any other legal system having influence over the contract’s governance. For example, the parties choosechoose the law of China to govern their contract. Secondly, if the parties do not expressly state which system should govern their relationship, the court then determines whether the parties have chosen the legal system tacitly. In layman terms, this means determining whether the parties left hints within the contractcontract which indirectly points to a specific legal system. Tacit choice can be inferred from any indication which can be manipulated into the formation of a choice by the parties. Lastly, should the parties fail to make a choice altogether (either expressly or tacitly), the courts will then assign an appropriate law. This is a process adopted by the courts which involves an investigation into all the legal systems involved within the contractcontract and identifying the legal system with which the contract has its closest and most real connection. From the above it is clear, that uncertainty in an international contract as to the applicable legal system and how to deal with contractual disputes, may result in a very costly and time-consuming exercise of having to determine firstly the applicable legal system and then the adjudication of the dispute in terms of that system. So, before you take the bold step internationally, get smart and obtain the necessary advice so you can approach your international contracting armed with the necessary knowledge to avoid headaches later. •

Mosdel Parma & Cox ppam@mpc.law.za 044 533 1101

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