Change the registered office of your company!

As a result of recent High Court decision, it will no longer be possible for a company to use an address chosen for convenience (e.g. of its auditors) as its registered address. Company management should ensure that CIPC's records reflect the company's registered office as the address of its office. If there is more than one office, then the address of the principal office should be used.

A company can change its registered office by filing a notice of change of registered office with the CIPC. There is no filing fee payable.

The Western Cape High Court recently considered the issue of the 'residence' of a company under the new Companies Act (the '2008 Act') in the matter of Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf and Country Estate (Pty) Ltd.

The judgment highlights the changes introduced by the 2008 Act relating to a company's registered office as well as the impact of these changes on the court having jurisdiction over proceedings involving the company in certain circumstances.

Judge Binns-Ward found that under the 2008 Act:

• a company's registered address must be the address of its office;
• if the company has more than one office, its 'principal office' must be its registered office in accordance with section 23(3). The term 'principal office' is not defined in the 2008 Act. Looking at the 2008 Act's requirements as to what must be kept at its registered office (sections 24 and 28), the court concluded that the principal office should be the place where "the company's general administration is centered" in other words where the "administrative business of the company is principally conducted";
• the transitional provisions in Schedule 5 of the Act do not deal with a pre-existing company's registered office and accordingly section 23(3) applies equally to such companies (a 'pre-existing company' is a company that was incorporated before 1 May 2011 under the Companies Act 1973); and
• the place where the company's registered office is situated determines where a company resides and therefore which court has jurisdiction in proceedings affecting the status of a company, such as liquidation and business rescue proceedings. (Before the 2008 Act came into effect, it was possible for a company to reside at more than one place and one could elect to institute proceedings using, for example, either the place of its registered office or its principal office.)

A summary of customary marriages in South Africa

The Recognition of Customary Marriages Act, 120 of 1998 (RCMA), 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

o   you and your spouse are both older than 18;

o   You have both agreed to be married under customary law;

o   You negotiated and celebrated your marriage following the rules set out in customary law;

·        Even though the husband does not need 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;

·        Customary marriages can be monogamous or polygamous.  Polygamy means that a male older than 18 years of age can marry more than one wife.  If the husband has only one wife, the law will recognise the traditional law marriage whether it has been registered or not. But if the husband wants to take a second wife, he must enter into a written agreement stating what should happen to the property and how it should be shared among his wives. The husband must apply to the court to approve the written contract. The court will ensure that all the proprietary interests of all wives are protected;

·        The RCMA automatically sees all people in customary marriages as married in community of property. This means that the husband and wife share all property, money, and debts equally. If you and your partner do not want to be married in community of property, you will have to enter into an ante-nuptial contract before you get married. If you are already married and do not want to be married in community of property, you will have to apply to the High Court to change your status.

·        The RCMA recognises that the wife has equal rights and status with the husband when it comes to deciding what happens to property they own together. A customary wife is also allowed to enter into a contract without the permission of the husband;

·        If the husband has no other wives, you can get married under civil law as well as customary law. However, neither of you will be able to enter into customary marriages with anyone else while you are married under civil law.

Landlord locked you out or cut off your electricity?

You need bring a ‘spoliation’ application to get possession restored.

The good news is that most Magistrates’ Courts will help you for free. If you need help, speak to your local Clerk of the Court.

Source: http://www.paralegaladvice.org.za/docs/chap05/04.html

 “A person who owns or is using something which is then taken away from them can go to court to get the item returned quickly. They can ask the court for a spoliation order, also called a 'mandament van spolie'. So, it is an order from the court that an item of property [or use of a property] be returned to its owner immediately. It is a useful remedy because it can provide someone in an urgent situation with immediate relief”.

Who can apply for a spoliation order?

Anyone who was in possession of something that was taken from them can apply for the order.

What must you show the magistrate to get a spoliation order?

1. You must show the magistrate that what was taken away is in the area of the magistrate's court where you are applying for the order. For example, if someone takes your oxen from your home in Queenstown and goes to Peddie with them, you must go to the magistrate in Peddie and ask for them back.
2. You must show the magistrate that you were the possessor (the person using what was taken).
3. You must show the magistrate that you were using the thing peacefully and undisturbed. For example, the oxen were grazing on your own land and were not causing any harm or damage to anyone else or their property.
4. You must tell the magistrate the name and address of the person or people who disturbed your possession.
5. You must show the magistrate that your possession was taken away from you with force or without your consent.
6. You must show the magistrate that it is possible for the other person to replace your possession (it does not have to be the original item).
7. You must show that you took steps to restore your possessions as soon as possible. The magistrate will want to know what you did since your possession was disturbed.

The use of CCTV video footage in the workplace

Can an employee rely on Close Circuit TV (CCTV) evidence in a dismissal hearing?

The crisp issue is this: is it a requirement for employers to make employees aware that they are being monitored by means of security cameras and that certain proceedings in the workplace may be recorded, such as a disciplinary hearing.

I've often appeared at the CCMA and other tribunals  in matters where a culprit was filmed stealing, on CCTV. The question of whether or not the employer was entitled to use the camera in the first place was never been raised as an issue at any of those hearings. It was assumed (perhaps incorrectly) that the employee had been advised of the fact that cameras were placed at strategic places, for monitoring purposes, or that notice was unnecessary. No employee has ever taken the point.

The Constitution of the Republic of South Africa of 1996 protects privacy in Section 14:

Everyone has the right to privacy, which includes the right not to have—

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized; or

(d) the privacy of their communications infringed.

The South African Constitutional Court has defined ‘privacy’ as the ‘right of a person to live his or her life as he or she pleases’.

Over the years, the courts also recognised unreasonable intrusions into the private sphere as actionable: bugging a person’s room, listening to private telephone conversations; spying on someone while she was undressing, reading private documents, unauthorized blood tests and harassment fell into this category. Certain unreasonable intrusions into the private sphere were recognised by the courts as being sufficiently serious to warrant liability for criminal invasion of privacy, in the form of crimen iniuria.

I would argue that whilst an employee may be aware that CCTV cameras exist, this will not justify an employer using CCTV footage during a disciplinary process if the employee was never told the footage could be used for that purpose. 

Ideally, an employer should have policies in place relating to email/internet/phone usage and the right to monitor staff, via CCTV.

CCMA arbitrators and other tribunals accept videotaped evidence as valid and reliable because:

·        It does not suffer from fading memory as may the testimony of human witnesses;

·        It provides a more accurate and clear picture than a human being.

·        The camera retains not only the words but also the non-verbal communications of those on camera.

Begging the question as to whether or not the employee, in the first instance, knew and consented to the fact that his actions may be monitored on video, to be acceptable, amongst other things:

·        The videotape must be clear. This means that visuals and audio must be sharp.

·        The video must be authenticated. In addition to the tape being clear, it must be shown not to have been tampered with in any way.

·        It must also be proved that the visuals and audio accurately reflected the incident in question and not some other incident.

·        The evidence provided by the videotape must not be hearsay and must not be contradicted by other evidence.

·        The video should not be part of an illegal entrapment exercise.

The low down on lawful evictions – PIE explained

Housing is a vital and primary need for each person. As most of us acquire accommodation by lease or through home loans or even through state housing provided by municipalities, it is important to know your rights and what the correct procedure is for lawful evictions.

With the exclusion of farm land, lawful evictions from residential premises, buildings or structures thereon, which includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter, is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly known as the PIE Act.

Who has a right to evict?

The right to evict under the PIE Act is given to a registered owner of premises or to a person in control of the residential premises in question. Persons in control of residential premises include:

• A lawful tenant
• The executor administrating the estate which includes the premises
• Any other agent acting on the lawful instructions of the owner

Who can be evicted?

People who can be evicted include the following people who remain in occupation of the premises:

• Defaulting tenants whose lease agreements are terminated
• Defaulting mortgagors whose bonds were cancelled and property sold in execution
• Unlawful occupiers and squatters
• Any other person who does not have the express consent of the owner or person in lawful control of the premises

What are the special considerations?

When dealing with eviction applications our courts are obliged to give special consideration to the elderly, children, people with disabilities and also households headed by women. All facts and circumstances of such persons must be highlighted to the court for the evaluation of such special considerations.

Lawful eviction procedure:

Step 1 - Eviction notice/demand

An eviction notice or demand serves to warn the occupant of the intended eviction and it usually provides the occupant 30 days to vacate the premises. It also affords parties the opportunity to negotiate settlement terms or terms and timeframes for vacating the premises. This letter may be served by the Sheriff of the Court, by hand at the premises or by registered post.

Step 2 - Court application for eviction

A court application by way of a notice of motion with a supporting affidavit must be served by the Sheriff on the occupant and on the relevant municipality. This will set out the court appearance date and the dates when the occupant must file their opposing court papers if they intend to oppose the eviction application. The occupant must receive the court application papers at least 14 days before the court date.

Step 3 - Appearance in court for hearing of eviction application

A Court is obliged to consider all relevant facts relating to the eviction application at the appointed dated for hearing the application. Legal representatives of the parties will be afforded an opportunity to present oral and written legal arguments on behalf of each respective party. The Court will then through a Court Order, if the application is successful, provide the occupant sufficient time to vacate which is ordinarily up to 1 month with a provision that should the occupant fail to vacate in that period, the Sheriff is authorized to remove the occupant and all belongings from the premises at the costs of the occupant.

Step 4 - Forced eviction of occupant by Sheriff

The Sheriff will first serve a copy of the Eviction Court Order on the occupants. The Sheriff will then usually be authorized to forcefully remove the occupants after the vacation date appointed by the court has lapsed. The Sheriff may also be authorized to obtain the assistance of the police where necessary and he may also be authorized to remove the belongings of the occupants including to demolish any erected structures. The Sheriff may take up to 3 weeks to execute the eviction Court Order after making necessary arrangements to evict the occupants.

Conclusion

Lawful evictions can take between 2 to 3 months to be concluded and they can become technical and even costly. A landlord, owner or a person in control who wishes to evict, and a tenant or occupant against whom eviction processes are being commenced, are in both instances advised to seek legal advice from an attorney specialising in evictions to ensure that the eviction process is lawful and carried out correctly. Following the correct lawful eviction procedure minimizes frustration, costs and potential further rental losses and avoids the need for conduct like changing locks, disconnecting utilities and even intimidating conduct, which in itself can result in legal action being taken by unlawful occupants against owners or landlords.