Our Services

Our Services

October 08, 2016

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

October 05, 2016

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.

October 03, 2016

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.