All about annual leave

With the December break just around the corner, I thought that this snippet would be useful.

·         The provisions in the Basic Conditions of Employment Act that apply to annual leave do not apply to an employee who works less than 24 hours per month or to employees who earn above the earnings threshold laid down in the Act (currently as from 1 July 2014, R205 433.30 per annum);

·         Employees are entitled to 21 consecutive days annual leave on full remuneration, in respect of each annual leave cycle;

·         If an employee works a five-day week, this is equal to 15 working days (or 1,25 days per month);

·         If the employee works a six-day week, this is equal to 18 working days (or 1,5 days per month);

·         Working days exclude public holidays. Whilst an employee is on annual leave, and a public holiday falls on a day on which the employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.

·         For temporary employees, or fixed term employees, the parties may agree that annual leave may be calculated on the basis of 1 hour of annual leave on full remuneration for every 17 hours (alternatively 1 day annual leave on full remuneration for every 17 days) on which the employee worked or was entitled to be paid;

·         The employee is entitled to take whatever leave he has accumulated in an annual leave cycle, on consecutive days. If an employee does not take a portion of leave during an annual leave cycle, the leave is automatically carried over to the next annual leave cycle, unless the parties agree otherwise. An employee can demand to take the carried over leave if he or she has still not taken his annual leave from the previous cycle within six months of the new cycle, and the employer may not refuse such permission.

·         If an employee is on annual leave and falls ill during that period, if she produces a doctor’s certificate that she was unfit for work during that time, she is entitled to additional annual leave for each such day. What this means is that the employer must credit that employee’s annual leave with the number of days sick leave, and debit the employee's sick leave.

·         The employer may not force an employee to take annual leave during any period of notice, and the employee is prohibited from taking annual leave during any period of notice.

·         Absent an agreement between employer and employee as to when annual leave can be taken, it is taken at a time to suit the employer. Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilize his annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.

·         An employee can’t take cash in lieu of annual leave except upon termination of employment.

A servitude can affect the value of a property.

When you’re hunting for a property, it’s important to ask the right questions, and one of them should be: ‘is there a servitude?’ The presence of a servitude can affect the value of a property for both buyers and sellers, if a property owner is unable to fully exercise his or her ownership over the property.

What is a servitude?

A servitude is defined as a registered right that someone (called the servitude of servient holder) has over the immovable property owned by another person, that places limitations on the right of ownership, and constitutes a burden on the property in question; it must be registered against the title deeds of a property.

There are two types of servitudes, praedial or personal. Each depends on whether it benefits a particular piece of land or a particular person:

Praedial:

Here, the benefit favours land, and, regardless of the identity of the owner at any given point, successive owners will benefit from the interest in the servient land, in perpetuity. The servitude is registered against the title deeds of both pieces of property. There are two types of praedial servitudes, urban (where land is used for purposes of habitation, trade or industry) and rural (giving a farmer a right or way, a water or grazing servitude and a way of necessity). Thus, a person has a limited right of use of his neighbour’s land. For example, farmer A has the right to cross the property of farmer B, or drive his cattle over or allow them to graze on, Farmer B’s land. 

Two farmers may have a registered agreement regarding the maintenance of the servitude, e.g., farmer B maintains the road to his farm if farmer A contributes to the maintenance of the road, proportional to his use of the road. In this case, an interested buyer of the property should be alerted to this right.

Personal:

A personal servitude, on the other hand, favours one specific person and not successive owners, so it terminates when that person dies or moves on. An example would be the right of the owner of a hemmed-in property to use an access road on the neighbouring property, or to grow a vegetable garden on a tract of his neighbour’s land. It is only registered against the title deed of the servitude holder.

If you are looking to buy a home on a panhandle stand, it’s important to ensure that there is a registered servitude over the front property, to ensure unhindered access to your property.

Our courts require some flexibility. In the case of Linvestment CC vs Hammerlsey, the Supreme Court of Appeal had to decide if a property owner could vary the terms of a registered servitude without the consent of the holder of the servitude. The court found that although Roman and Roman Dutch authorities held that a registered servitude could not be changed without the mutual consent of both property owners, it was in the interests of justice and in line with international trends to follow a more flexible legal approach. It found that as the proposed change was reasonable then the Court could, and did modify the terms of a registered servitude without the consent of the property owner who enjoys the benefit of the servitude.

The effect of this judgment is that if there is a registered servitude that unreasonably prejudices a property owner, he may turn to the court for help.

A service provider, like a municipality or Eskom, may have a servitude on a piece of land, e.g., for the erection of power lines, which prevent or limit activities that may affect their operations, such as no tall buildings or trees within the servitude. This would also affect the selling price.

If you do not insist on seeing a copy of the title deeds and surveyor-general’s diagram when buying vacant land, your plans to build that dream home could become a nightmare.

Both documents will tell you if there is a servitude on the property. The presence of a servitude makes it impossible to build within its area.