Must I work overtime?

Section 10 of the Basic Conditions of Employment Act (‘the BCEA’) provides that an employer may not require or permit an employee to work overtime unless there is an agreement to work overtime.

If there is such an agreement, a refusal to work agreed overtime amounts to misconduct.

Agreement to work overtime

·         The agreement does not have to be in writing, but in order to avoid disputes it is advisable to record it in writing;

·        The contract of employment may contain an agreement to work overtime if the need arises. If an employee refuses to work agreed overtime, it amounts to a breach of contract and disciplinary action can be taken against the employee;

·      If employees collectively refuse to work agreed overtime it amounts to industrial action and the relevant provisions pertaining to strike law would apply. (Note: Some Bargaining Council Agreements may contain specific provisions that regulate overtime in a particular industry or sector);

·   Section 6 of the BCEA provides that the normal requirement that overtime must be by agreement does not apply in cases where ‘work is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work’. If these circumstances exist and employees refuse to work overtime they may be subjected to disciplinary action.

When is someone disqualified from benefiting under a will?

The following persons are disqualified from benefiting under a will:

1.     A person who has unduly influenced the person who wrote the will to give him a benefit under the will.

2.     A person who is unworthy, e.g.

·         A person who unlawfully has caused the death of the testator. This is in accordance with the maxim de bloedige hand er neemt geen erffenis, and clearly the person who murders another cannot take a benefit from the will of his victim.

·         a person who has led another into an immoral life and indirectly caused the latter’s death;

·         a person who has concealed the will of the testator;

·          A person who has attempted to defraud persons of their rightful inheritance by forging a will.

In Makhanya v Minister of Finance the court used the de bloedige hand maxim to extend the rule to cover any proceeds from the deceased’s pension fund from benefiting the person who caused the deceased’s death.

The facts in Danielz NO v De Wet and Another were that De Wet was the sole nominated beneficiary under four life insurance policies on the life of her late husband. In 2000, she hired and paid two men to assault her husband. Unfortunately, they killed him.

In 2006, after the she had been convicted on the criminal charges against her, she claimed under the life insurance policies from the insurer. The applicant, who was the nominee of the insurer (Old Mutual), applied for a declaratory order that De Wet was not entitled to the proceeds of the life insurance policies.

The court agreed and the application for a declaratory order to bar De Wet from claiming the proceeds of the policy was therefore successful.

Muslim and Hindu marriages

Traditional Muslim and Hindu marriages are not recognised by civil law

But if spouses go through a civil marriage ceremony or are married by a priest who is a marriage officer, the law will recognize their marriage. The husband then cannot marry any other woman by civil law or religious law.

The legal consequences of recognizing Muslim and Hindu marriages has been debated in the Law Commission and broader public for a number of years but there is as yet no agreement. In the meantime, rights have been given to spouses in Muslim marriages in bits and pieces in the same way that they have for domestic partnerships.

Court decisions dealing with recognition of Muslim and Hindu marriages

In the case of Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 (SCA), a surviving spouse from a Muslim marriage was given the right to claim damages for loss of support from the Fund when her husband died in a motor accident.

In the case of Daniels v Campbell N.O. and Others 2004 (5) SA 331 (CC), the plaintiff was given the right to claim maintenance from the estate of her deceased husband to whom she had been married by Muslim law, in terms of the Maintenance of Surviving Spouses Act.

In the case of Khan v Khan TPD case no: 82705/03 / A 2705/2003 a Muslim woman who was party to a polygamous Muslim marriage was given the right to claim maintenance from her spouse in terms of the Maintenance Act.

ARE YOU BEING ABUSED?

You can apply for a Protection Order which can protect you from further abuse.

How are you being abused?

Physical abuse: pushing, slapping, punching, kicking, burning, biting, stabbing.

Verbal abuse: putting you down, name- calling, yelling, and belittling you.

Sexual abuse: having sex with you against your will, making you do sexual things you don’t want to do.

Controlling your movement: or keeping you locked in the house, isolating you from family and friends, monitoring your phone calls.

Economic abuse: taking away your money, refusing to provide enough money for household expenses, not paying maintenance when he can afford to do so.

Abusing power: always claiming to be right, telling you what to do, and making decisions without consulting you.

Threat with guns or knives: attempting to scare or kill you or your children.

Forced entry: making uninvited calls and visit, refusing to leave when asked.

Stalking you: following you wherever you go, phoning you all the time to check where you are?

Saying the abuse is your fault: pretending that he never hurt you, blaming all his problems on you.

Abusing your children: verbal and physical abuse, sexual abuse, forcing your children to monitor your telephone calls or who visit you, using your children to steal.

Damaging your property: tearing your clothes, burning your belongings, destroying important documents, e.g. ID book/ passport, damaging your furniture.

Who do I contact?

If you need more information or help with a problem of domestic violence you can:

• Talk to a health worker at your local clinic
• Talk to a counselor from your local NGO or welfare office
• Phone the national toll-free Stop Women Abuse hotline – 0800150150

How can the police help me with a problem of domestic violence?

If you report a case of domestic violence to the police:

·         They will tell you about your rights and how to get a protection order

·         They can send a police officer to your home to protect you from further abuse. They can also take away the abuser’s weapons if he is threatening you.

·         They can help you find a shelter and a counseling service.

·         They can also help you get medical care.

·         They must arrest the abuser if he does not obey the protection order.

If a police officer does not help you, you can report him or her to the Station Commissioner. You can also contact your local police Area Commissioner, or the offices of the Independent Complaints Directorate (ICD).

ICD HEAD OFFICE: Maphetang Foolo	012 320-0434
GAUTENG	011 838 2875/6
MPUMALANGA	013 752 4316
NORTHERN PROVINCE	015 295 5561/5
NORTH WEST PROVINCE	018 381 1490
FREE STATE	051 522 9856
KWAZULU/ NATAL	031 305 8370
EASTERN CAPE	043 642 1667
NORTHERN CAPE	053 831 7390
WESTERN CAPE	021 426 0700

Customary marriages: I think I’m married, but am I?

The Recognition of Customary Marriages Act, 120 of 1998, that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa. The following summarises the position:

• The law recognises your customary marriage if:

 you and your spouse are both older than 18;

• You have both agreed to be married under customary law;
• You negotiated and celebrated your marriage following the rules set out in customary law. 

• Even though the husband does not need to pay Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage (the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people);

• If you are married under customary law, you should (but don’t have to) register your marriage with the Department of Home Affairs;

So what proof do you have that you are married under customary law if you haven't registered the marriage at the Department of home affairs? Do you have a written contract in place, formalising the agreement between the parties?

There have been several cases where parties had to go to court to ask for an order declaring that they had been married. For example, in the case of Motsoatsoa v Roro and Others the ‘wife’ asked for an order declaring that a customary marriage existed between her and her late ‘husband’. The court found that, in fact, no customary marriage was entered into between the applicant and the deceased.

In the matter of Southon v Moropane the applicant sought an order that she was married to the respondent. The court agreed and found:

Having considered all of the factual matrix, the testimony of the witnesses, the experts’ testimony, the academic writings, case law, practices in the community and the authorities, in my view the essentials of a customary marriage between the plaintiff and the defendant in terms of s 3(1) of the Recognition Act were fulfilled. Both parties consented to marry each other according to customary law, and their marriage was negotiated, celebrated and entered into in accordance with customary law.

Why should it be necessary to go to court, at huge expense and at great risk, to prove that you are married? If you haven’t registered the marriage at Home Affairs, do so. Alternatively, put together a Lobola agreement.

We believe that this will help thousands of people who have entered into a customary marriage but now do not have any proof. This would secure the future of their children in case anything happens to the breadwinner and will also prevent family conflict as the assets of the deceased would automatically be the assets of the surviving spouse and the children.

The agreement would record the intention of the parties about their traditional wedding. The document would be a simple contract which would reflect:

i)             The names of the parties ;

ii)            The date of the traditional marriage ;

iii)           The intention of the parties with regards to the joint estate in the event one passes away;

iv)          The parties intention regarding the children born or to be born in the traditional marriage ;

v)           Any other issues to be included.

If you would like our help in putting together an agreement, confirming that you are, indeed, married, and to formalise things, please email Roy Bregman for a quotation.

Can a parent stop maintaining an ungrateful child?

Duration of duty to support child  

These are the general principles:

·         A parent’s duty to support a child does not cease when the child reaches a particular age but it usually does so when the child becomes self-supporting. Majority (18) is not the determining factor.

·         At common law, both divorced parents have a duty to maintain a child of the dissolved marriage. The incidence of this duty in respect of each parent depends upon their relative means and circumstances and the needs of the child from time to time. The duty does not terminate when the child reaches a particular age, but continues after majority.

·         The Divorce Act refers to ‘provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage’ and provides that a court granting a decree of divorce may make any order which it may deem fit in respect of the maintenance of a dependent child of the marriage.

·         The duty of support likewise revives if a child ceases to be self-supporting for reasons such as ill-health or disability.

·         A major is not usually supported on as lavish a scale as a minor. A major must be in dire financial straits before a court will order a parent to support him or her.

·         When a child marries, the duty of support rests primarily on the spouse. Only if the spouse cannot provide support can the parents be called upon to do so. If parents do support a married child, they have a right of recovery against the spouse.

Ingratitude

Can a child’s conduct relieve a parent of the duty to support? Voet (a 17^th century Dutch jurist) states that the duty ceases when the person to be maintained is guilty of ingratitude of a degree which would justify disinheritance.

However, ask yourself, as a parent, what you may have done to earn his or her ingratitude. There may be two sides to the story.

By way of interest (and not in the context of withholding payment to a minor child) in 2002, best-selling author, Wilbur Smith, launched an unusual ‘gross ingratitude’ lawsuit against his stepson, demanding that he return millions of Rands in cash and luxury gifts given to him over the years. Smith claimed that his stepson had demonstrated ‘gross ingratitude’ to him and had ‘rejected, humiliated and been unconscionably rude’ to Smith's new wife.

An employer’s liability for alcohol in the workplace

With Christmas just around the corner, this article may be appropriate to employers who host Friday afternoon office parties

Your employees relax in the office pub on a Friday afternoon. They get a bit tipsy and one employee has a car accident on the way home. Are you, as the employer, liable for damage caused to a third party by an intoxicated employee?

In South Africa, employers can be held responsible for damage caused to others by an employee acting within the course and scope of their employment. This is called vicarious liability. Our courts have not yet pronounced on whether an employer is liable for damage caused by an employee who has consumed alcohol above the prescribed legal limit, but who is not acting in the course and scope of his employment. According to the AA of SA:

In South Africa, the legal limit is a breath alcohol content of 0.24mg per 1,000ml, or a blood alcohol limit of 0.05g per 100ml, a fact that should be burnt into every motorist’s memory. This begs the question: ‘What does this mean for me, and what specifically constitutes being over the limit?”

The rule of thumb is a maximum of one unit of alcohol per hour, which constitutes 10ml of pure alcohol, based on an adult weighing 68kg. Our bodies can process only one unit of alcohol each hour. However, it is important to be aware that if you weigh less than 68kg your body will need more time to process the same amount of alcohol.

In Canada, courts have held employers liable for harm sustained by employees involved in accidents following work functions from which they drove home over the legal limit. In Jacobson v Nike Canada, the court held that if the employer had at least attempted to prevent its employee from driving home by confiscating his keys or calling a taxi for him it would have been absolved of a considerable amount of its liability.

Although this specific issue has not yet been dealt with by South African courts, it is likely that when faced with such a matter a South African court would probably decide the matter in much the same way as the Canadian courts did.

The rationale behind the decision is that an employer hosting a function owes a duty to its employees. After a function, an employer should, at least, confiscate the keys of drunken employees and offer them a ride home

Body Corporate fines – how binding are they?

Can a Body Corporate fine an owner for, e.g. making too much noise, being discourteous to security officers, or keeping a pet, against the Conduct Rules of the complex?

Karen Bleijs kbleijs@ibalaw.co.za a colleague and sectional title expert, had this to say:

The issues of keeping pets in sectional title schemes, as well as the imposition of fines, are both extremely thorny issues, and both fall within the ambit of the Rules of a particular scheme. This means that each particular body Corporate will have its own Conduct Rules unless the generic Conduct Rules in terms of the Sectional Titles Act apply.

Two new Acts that govern sectional title schemes have just come into operation: the Sectional Titles Schemes Management Act and the Community Schemes Ombuds Services Act! (but this is by the by!)

As regards Rules and Bodies Corporate and in answer to your questions:

1.     A Body Corporate ONLY has the power to fine unit-owners (not tenants) subject to certain circumscribed conditions, which are fairly extensive but include inter alia the following:

1.1. The provision permitting fining must be contained in the Conduct Rules applicable to the scheme;

1.2. The Conduct Rules must have been approved by the unit-owners at a duly convened Special General Meeting by Special Resolution;

1.3. The provision must be reasonable and apply equally to all unit-owners;

1.4. A fair procedure must be followed and the provisions of the Administrative Justice Act must be adhered to – in other words fair warnings must be given to owners that have contravened the Rules that they will be fined if they continue to contravene the Rules/a Rule and the owner must be given the opportunity to rectify the situation, there must be a right of recourse and the owner concerned must be allowed to have his/her say and discuss the matter with the Trustees, the owner must know what the fine will be, and so on;

1.5.  The fine cannot continue indefinitely every month. If the Rules say “no dogs”, the owner must be placed on terms to remove the dog within a certain amount of time and if he does not, provided the Rules permit it, then he must be fined. Hereafter he must be taken to Court by the Body Corporate, or to arbitration (or now to the Ombud in terms of the new Act) to obtain an Order to remove the dog;

1.6. The amount of the fine must be known or ascertainable; AND

1.7. The Rules must be lodged with the Deeds Office (now with the Ombud’s Office) in order to be legally enforceable.

Conduct Rules most definitely have the ‘power of the Law’ behind them, provided that they are made in terms of the Act.

Is the power to impose fines sometimes abused? MOST DEFINITELY. This is why educating the public regarding the rights and duties of ownership of sectional title units and the law relating thereto is so critical, to avoid abuses of power.

One last thing, some sectional title schemes permit the keeping of pets and some do not allow it at all. Many schemes allow the keeping of pets subject to certain conditions. A number of others allow the keeping of pets subject to the permission of the Trustees, which permission cannot be unreasonably withheld.

Every individual case must be dealt with on its merits but fairness must prevail – so if someone moves into a scheme and they know beforehand that there is a rule that provides that: “NO PETS ARE ALLOWED”, then they must not be surprised if they bring a pet on to the premises and are required to remove it. HOWEVER, if the new owner is blind and NEEDS a dog to assist him in his day-to-day living, the situation is of necessity different, and the Trustees would be violating his constitutional rights to deny him the right to keep a dog in the scheme.

Thinking of getting divorced?

How divorce works

Once a married couple (whether married according to civil or customary law) has decided to get divorced, the person suing for divorce (the “Plaintiff”) needs to prepare a divorce summons, either through the High Court or the Family Court at a local Magistrates’ Court, suing the other spouse (“the Defendant”).

The person suing for divorce needs to show the court that the marriage has irretrievably   broken down. Evidence to support this could be that the parties don’t love each other any longer, that they have been living apart for a long time, one partner has cheated, or that there was physical or mental abuse involved in the relationship. Other grounds of divorce are that one party is in a coma or is permanently mentally ill.

The summons

The summons would include details such as how you split assets, who the kids live with, maintenance, visitation rights and responsibilities and rights of the parents regarding the kids.

Ideally, the parties will enter into a written agreement of settlement, recording these issues, that is made a court order. In this way, the marriage will proceed on an unopposed basis. This is much cheaper and reduces conflict.

The Sheriff of the Court will serve the summons on the Defendant. In some cases, the Defendant may decide to oppose the summons, in which case his or her attorney will send back a Plea (answer to the summons).

If the matter is unopposed, the Plaintiff applies for a court date, and sets the matter down.

If the matter is opposed, the lawyers for each side will exchange ‘pleadings’ and will set the matter down once the matter is ripe for hearing. This could take years and will cost a fortune. Unless you have limitless funds, rather settle, with help from a friend, mediator, priest or pastor.

Using a lawyer

The most frightening aspect of instructing an attorney is the prospect of high legal fees. Relax. We charge an agreed fee with you, up front, and will not bill you for every phone call or by the hour.

We’ll meet with you and hold your hand throughout the process, help you decide on how to divide your assets fairly and work out what is best for your children. We’ll help you to minimize the cost and stress of a divorce. Our fee includes all consultations and putting together a settlement agreement that will be made a court order. If money is tight, we will accept reasonable instalments.

Interested? Email roy@bregmans.co.za for more information.

Dismissal for refusing to sign an employment contract?

Employers are often at a loss when an employee refuses to sign a contract of employment. Can the employee be disciplined or dismissed? What other measures are available to the employer?

One of the most common that employers make is to appoint a person without having agreed on all the terms and conditions of employment. When the employee is subsequently required to sign a contract of employment, the employee refuses or fails to sign the contract. This may be due to some misunderstanding or unhappiness with regard to particular provisions in the contract.

Our law states that verbal employment contracts are perfectly binding. But, obviously, it’s better for both employer and employee to enter into a written contract, to record all the pertinent rights and obligations of both parties. This avoids vagueness.

What should an employer do if it does not have a written agreement in place?

It is important to explain to the employee that it is to the benefit of both parties to have a written contract of employment. The provisions of the contract should be explained to the employee and the parties must establish whether there are any areas of disagreement. If there are none, and the employee still refuses to sign the contract, it serves no purpose to attempt to compel the employee to do so.

The Basic Conditions of Employment Act does not require the parties to enter into a written contract of employment. It simply requires the employer to supply the employee with written particulars of employment and it provides that certain items must be included in such particulars. The employer complies with the provisions of the Act if it provides the employee with a copy of the draft contract with a note that the employee has refused to sign it.

A signed written contract does, however, have definite advantages. It brings certainty and reduces the likelihood of disputes. There might also be provisions that are important to the employer, e.g. confidentiality or a restraint of trade undertaking. The enforcement of such provisions would be very difficult, if not impossible, without a signed contract. 

If the employee refuses to agree explicitly with a provision that is reasonable, the employer may embark on a procedure that could lead to the termination of the employee’s services due to operational requirements (retrenchment). 

Professional advice and assistance are recommended in these circumstances.