New Parental Leave Provisions

In terms of recent changes to Basic Conditions of Employment Act (BCEA), from 1 January 2020, the BCEA makes provision for parental leave, adoption leave and commissioning parent leave (surrogacy arrangements).

Parental, adoption and commissioning parental leave will be unpaid but employees can submit claims to the Unemployment Insurance Fund to qualify for payment of these benefits.

Parental leave

In terms of section 25A of the BCEA, an employee, whether male or female, who is a parent of a child is entitled to at least 10 consecutive days of parental leave, which may commence on the day that the employee’s child is born.

This means that in a two-parent household, where the parents are expecting a child, the parent who gives birth will be able to take maternity leave of at least four months and the other parent will be entitled to at least 10 consecutive days parental leave.

Adoption leave

Section 25B gives an employee who is an adoptive parent of a child below the age of two the right to adoption leave of at least 10 consecutive weeks or at least 10 consecutive days of parental leave, from the day the adoption order is granted or the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.

The one parent can now take at least 10 consecutive weeks’ adoption leave while the other parent will be able to take at least 10 consecutive days parental leave. The adopting parents can elect which partner will take which form of leave.

Commissioning parental leave

In terms of section 25C of the BCEA, employees who are commissioning parents in a surrogate motherhood agreement are entitled to either commissioning parental leave of at least 10 consecutive weeks or parental leave of at least 10 consecutive days. The commissioning parents can elect which of the parents will take which leave.

Family responsibility leave

Family responsibility leave provisions (save for leave when a child is born) remain intact and employees may take family responsibility leave in instances where the employee’s child is sick or in the event of a death in the family.

Change your employee contracts

In light of these changes to the law, employers are encouraged to review their outdated policies and employee contracts in order to ensure that they remain compliant with recent labour law amendments.

Bregman Moodley Attorneys can assist.

Dog Bites – what are your rights?

When can you claim damages for patrimonial loss (expressed in money) from a dog owner if his dog bites you and injures you?

Two Latin principals apply, the actio de pauperie (that refers to the legal remedy that can be brought against the owner of a domesticated animal that has caused damage when it was acting contrary to the nature of its species - that is, from ‘inward excitement or vice’ and the actio legis aquiliae (an action used to claim for financial loss).

Both special damages (which may include, for example, damage to property and future medical expenses), as well as general damages (which may include pain and suffering, loss of amenities of life, disability and disfigurement) may be claimed in terms of the actio de pauperie. A person who has been bitten by a dog is entitled to damages not only for the direct injury and pain, but also for subsequent physical disorders occasioned by the nervous shock.

As a general principle, where a person has assumed control over a potentially dangerous animal which may cause harm unless preventative measures are taken, she is under a legal duty to act to protect third parties, and must take steps to protect others against harm flowing from the conduct of the dog.  If she fails to do so, she bears the sole responsibility for the damage caused by the animal.

What do you have to show to a court?

You must prove that she owned the dog; that it was under her control; that it acted against its nature (referred to as contra naturam sui generis in Latin) and that you (the victim) were lawfully present at the location where the damage was inflicted and you were injured.

The actio de pauperie imposes a strict liability on the dog owner (i.e. if you sue, you don’t normally have to prove that the owner was at fault (that he acted intentionally or negligently) and you can rely, in the alternative, on the actio legis aquiliae to prove negligence. You must prove that the dog attacked and bit you without any apparent cause.

You will need to prove the requirements set out in the ‘reasonable person test’ that Mr Average Citizen in the position of the defendant would  foresee the possibility of his or her conduct causing injury to another or to the property of another and leading to subsequent patrimonial loss; and must take reasonable steps to guard against this occurrence.

The following defences may be raised by a defendant against a pauperian action.

You knew the dog was vicious but chose to place yourself in a dangerous situation, willingly; you were on the premises unlawfully (for example, an intruder or a thief), or you provoked the dog. To succeed, you must show the court that the victim knew of the risk of sustaining injury and voluntarily accepted such risk.

Take reasonable steps to protect yourself from claims

Rather than rely on any possible defences, consider taking out personal liability insurance to cover any claims from the victim of a dog bits.

What to do after an accident

What are your duties after a crash? What are your rights if you are injured or your car is damaged?

Your rights and obligations after a collision

If you are involved in or contribute to an accident on a public road in which another person is killed or injured or suffers damages in respect of any property or animal, in terms of the Road Traffic Ordinances there are clear duties imposed on you. Here is what you should do:

1.     Stop your vehicle immediately. Of course, you do not need to stop at an accident if, for example, you hit a tree and only damage your own car or injure yourself. There is a legal and, indeed, a moral obligation on you to report a collision to your nearest police station if you hit a lamp standard or say a stationary vehicle and the accident is not witnessed.

2.     Check the nature and extent of any injury to another person.

3.     If the person has been hurt, do all you can to help by administering first aid, (if you know how), summons the police and, if necessary, an ambulance. If you know nothing about first aid, please do not try to render assistance as this may do more harm than good!

4.     Determine the nature and extent of any damage suffered.

5.     If you are required to do so by any person entitled to such information, provide and obtain the following information:

a)    name, address and telephone number of drivers and owners of the vehicles;

b)    registration numbers of both vehicles;

c)    names of the driver’s / owner’s insurance company / insurance broker;

d)    full details of the place and time of the collision and the road conditions and visibility at the time.

6.     Make a short note (to jog your memory) of what you recall occurred immediately before and at the time of the collision (including a description of what happened, the speed at which the vehicles were travelling, whether the lights were on or off, if it was raining, whether the other driver was indicating, etc.).

7.     If you are fortunate enough to have a camera or phone with you at the time of the collision, take photographs of the scene of the collision from various angles. If not, it is always a good idea to return to the scene as soon as possible thereafter, to take the necessary photographs.

8.     Measure distances from the point of the collision to identifiable landmarks such as traffic lights, lamp standards, stop signs and the like and make a rough sketch showing the position of the vehicles immediately before and after the collision;

9.     If you are fortunate enough to have witnesses, make sure to take down their full names, addresses and telephone numbers;

10.  Do not admit liability for the collision, whether to the driver of the other car, a bystander or to the Police, as this may prejudice any claim that you may have either against the other driver or in respect of your policy of insurance. On the other hand, if the other driver apologizes for the collision and admits liability, do not hesitate to have him sign a written admission of liability there and then and, if possible, have that statement witnessed. On the other hand, if he is not prepared to commit his apology to writing, endeavour to persuade him to make his admission in the presence of a responsible official, such as a police officer.

11.  If a person or animal has been injured, you are not allowed to move the vehicles, even if they obstruct the traffic until you are given permission to do so by a traffic officer or unless either vehicle completely obstructs the road. However, if you do move either vehicle, it is important to chalk out its position before doing so. On the other hand, if no-one has been injured, it would be important to move the vehicles out of the road to prevent a further collision with oncoming traffic.

12.  If you are obliged to have your car towed away, agree the charges in advance, otherwise you could be in for a nasty shock when presented with the bill later. Similarly, if you are a member of the Automobile Association (AA), make sure that only an approved tow-in service is utilised, as the AA will not pay for such service otherwise and you could be substantially out of pocket.

13.  If there is a traffic officer at the scene of the collision, you are obliged to provide him with such information as he may require. If you do not give this information to such official, you must within 24 hours of the accident, report it at a police station or at an authorised office of a traffic officer (unless you are injured and cannot do so timeously, in which event you must report the accident as soon as is reasonably practicable thereafter). When you report the accident, give only the essentials and do not commit yourself to a written statement before consulting your insurance company or attorney.

14.  As soon as possible, advise your broker of the accident (even if you do not intend to claim), as the other driver may lay a claim at a later stage.

15.  Keeping the above in mind, it would be advisable to carry in your car a pen, paper, a first aid kit, torch and red reflective triangles.

Life insurance paid to trustee of insolvent estate and not to intended beneficiary

Mr Wentzel took out a life insurance policy with Discovery Life Limited (Discovery) insuring the life of his wife, whom he was married to in community of property in 2007, in terms of which he appointed himself as the beneficiary of the policy. The same policy also insured his life and appointed his wife as beneficiary in the event of his death.

Their joint estate was sequestrated in 2012.

Mrs Wentzel died in 2017 and Mr Wentzel claimed the proceeds from Discovery as the beneficiary of the policy.

Discovery informed Mr Wentzel that the payment of the proceeds would be made to the trustees of the insolvent estate. He approached the Pretoria High Court in Wentzel v Discovery Life Limited and Others to object and claimed that the administration of the insolvent estate had long since been finalised.

The court had to decide whether the payment of a life insurance policy by an insurance provider to a nominated beneficiary, being an unrehabilitated insolvent, would vest in the beneficiary or the trustees of the insolvent estate.

The court found that the estate of the insolvent remained vested in the trustees until such time that the insolvent was either re-vested with the estate, pursuant to a composition or his rehabilitation, neither of which had occurred. Accordingly, it directed that the insurance proceeds had to be paid directly to the trustees of the insolvent estate.

The moral of this tale is that the Wentzels should have made the beneficiary of the Discovery policy a trust and not themselves. Living Trust-centered estate plans provide superior asset protection.

The Requirements for a Universal Partnership

In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. This is a common misunderstanding.

A widely-used definition describes “domestic partners” as “two adults who share an emotional, physical and financial relationship like that of a married couple but who either choose not to marry or cannot legally marry. They share a mutual obligation of support for the necessities of life.”

Cohabiting couples do not have the same automatic rights as married couples under the law. If parties live together but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party (who disagrees), must go to court, at some expense, to prove that entitlement. To do so, the party must prove they were in a ‘Universal Partnership’, so that one party is entitled to certain property and assets of the other party, on separation.

The requirements for a Universal Partnership were canvassed at length in Le Roux v Jakovljevic (14-05429) 2019 ZAGPJHC 322 (5 September 2019)

The Plaintiff sought a declaratory order that a universal partnership existed between the parties. The Defendant denied the existence of a partnership, universal or otherwise.

Having regard to all the facts and circumstances of this case the court concluded that was more probable than not that a tacit agreement [universal partnership] had been reached. Their partnership enterprise included both the business and their family life. The plaintiff’s impression as to the core of their relationship was borne out by the conduct of the parties.

“Where a court finds it impossible, impracticable or inequitable to physically divide a particular asset between the parties or to cause it to be auctioned and to have the proceeds divided between them it can place a valuation on that asset with due regard to the particular circumstances concerning its value at date of dissolution of the partnership. The court may then award the assets to a partner and order him to pay the other her share”.

This was the court’s analysis:

In Paixao v Road Accident Fund2 Cachalia JA held that:

“Proving the existence of a life partnership entails more than showing that the parties cohabited and jointly contributed to the upkeep of the common home. It entails, in my view, demonstrating that the partnership was akin to and had similar characteristics – particularly a reciprocal duty of support - to a marriage.”

[17] The requirements for the existence of a universal partnership are summarised in the matter of Pezutto v Dreyer and others 3 which was also confirmed in Butters v Mncora4 at par 17:

“Our courts have accepted Pothier’s formulation of such essentiala as a correct statement of the law. (Joubert v Tarry & Co 1915 TPD 277 at 280 -1; Bester v Van Niekerk 1960 (2) SA 779 (A) at 783H – 784A; Purdon v Muller 1961 (2) SA 211 (A) at 218B – D). The three essentials are (1) that each of the partners bring something into the partnership whether it be money, labour or skills; (2) that the business should be carried on for the joint benefit of the parties and (3) that the object should be to make a profit. (Pothier: A Treatise on the contract of Partnership (Tudor’s translation) A fourth requirement mentioned by Pothier is that the contract should be a legitimate one.”

In Butters the history of the different types of partnerships as well as their applicability to cohabitants was discussed. It was held at par [18] that such partnerships can extend beyond commercial undertakings and that:

‘(a) Universal partnerships of all property which extend beyond commercial undertakings were part of Roman Dutch law and still form part of our law.

(b) A universal partnership of all property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is, by an agreement derived from the conduct of the parties.

(c) The requirements for a universal partnership of all property, including universal partnerships between cohabitees, are the same as those formulated by Pothier for partnerships in general.

(d) Where the conduct of the parties is capable of more than one inference, the test for when a tacit universal partnership can be held to exist is whether it is more probable than not that a tacit agreement had been reached. “6 (emphasis provided).

In the majority decision of Butters, it was held at par [19] that:

“Once it is accepted that a partnership enterprise may extend beyond commercial undertakings, logic dictates, in my view, that the contribution of both parties need not be confined to a profit-making entity….It can be accepted that the plaintiff’s contribution to the commercial undertaking conducted by the defendant was insignificant. Yet she spent all her time, effort and energy in promoting the interests of both parties in their communal enterprise by maintaining their common home and raising their children. On the premise that the partnership enterprise between them could notionally include both the commercial undertaking and the non-profit making part of their family life, for which the plaintiff took responsibility, her contribution to that notional partnership enterprise can hardly be denied.”

The Requirements for a tacit agreement

In the minority judgment in Butters, penned by Heher JA with whom Cachalia JA concurred, he summarised the approach to establishing whether a tacit agreement exists, as follows:

‘[34] This appeal is about an alleged tacit agreement. As in all such cases the court searches the evidence for manifestations of conduct by the parties that are unequivocally consistent with consensus on the issue that is the crux of the agreement and, per contram, any indication which cannot be reconciled with it. At the end of the exercise, if the party placing reliance on such an agreement is to succeed, the court must be satisfied, on a conspectus of all the evidence, that it is more probable than not that the parties were in agreement, and that a contract between them came into being in consequence of their agreement. Despite the different formulations of the onus that exist: see the discussion in Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) at 164G-165G; Christie’s The Law of Contract in South Africa, 6ed 88-89, this is the essence of the matter.’

ANALYSIS OF THE EVIDENCE

This Court is to approach the factual disputes which exist between the evidence adduced on behalf of the Plaintiff7, and the evidence presented on behalf of the Defendant, by applying the principles enunciated in the decision of Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others9, Nienaber JA held as follows:

"To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with