So, I have two bosses?

A worker, placed at a client by a labour broker, has two employers, once he has worked for the client for more than three months.

In a recent Labour court decision, the court in Assign Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2015] JOL 33875 (LC), had to decide on the legal effect of the changes effected by sections 37 and 38 of the Labour Relations Amendment Act 6 of 2014 to section 198 and 198A – D of the Labour Relations Act 66 of 1995. The amendment addresses the relationship between a labour broker or Temporary Employment Service (“TES”), the workers it engages and the client with whom they are placed. Pivotal to the amendment is a deeming provision that makes a worker an employee of the client, three months after placement.

The question facing the Court was whether the TES continues to have a relationship with the worker and, if so, whether the relationship would remain as one of employment. The applicant was a TES and the third respondent was a trade union taking an opposing stance on the issue. The applicant contended that once a placement occurs, the client becomes invested with the rights and obligations that, by operation of the Labour Relations Act 66 of 1995, accrue to an employer and, since the TES has in no sense been deprived of its status as employer, the two relationships then operate in parallel.

Held that there appeared to be no reason, in principle or practice, why the TES should be relieved of its statutory rights and obligations towards the worker, because the client had acquired a parallel set of such rights and obligations. The worker, in contracting with the TES, became entitled to the statutory protections that automatically resulted from his engagement. There seemed to be no public policy considerations relating to why he should be expected to sacrifice them because the TES had found a placement with a client, especially since the designation of the client was within the sole discretion of the TES.

Must I  adopt my husband’s surname after we get married?

This is customary but it is not a legal obligation. The wife can continue to use her maiden name or any other surname which she bore before her marriage. A ‘wife’ also includes a woman who has been married according to the rites of the Islamic or any Indian religion or a recognised customary union.

The children, of course, will take the surname of the father.

Must I amend my will after a divorce?

In the aftermath of a divorce, a person often forgets to amend his or her will. A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce.

The Wills Act provides that if you die within three months of the divorce, a bequest to your divorced spouse will be deemed cancelled (except where you expressly provide otherwise). Basically, this provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you fail to amend your will within three months after your divorce, your divorced spouse will benefit as indicated in the will.

So, be warned, if you don’t want your ex to benefit any longer, change your will.

What laws apply to keeping a dog in a sectional title complex?

A client complained that her body corporate won’t allow her to keep a small dog in her unit, and asked me about her legal rights.

The first place to look is in the conduct rules of the complex. Annexure 9 of the Sectional Title Act states that the keeping of pets in a sectional title scheme is permitted, subject to the prior written consent of the trustees, who may not unreasonably withhold their consent. These rules also state that the trustees may impose any reasonable condition on keeping a pet (e.g. no large animals, cats must be neutered or spayed, etc.)

Our judges, who have heard pet cases, have found that trustees must view each request to keep a pet, objectively, and not dismiss any request out of hand, without fairly considering the circumstances of each case.

Unfortunately, if the conduct rules of a complex specifically provide that no pets are allowed, stand on her head, an owner has no right to complain and if she brings a pet onto her property, the body corporate may and will ask her to accommodate the pet elsewhere.

What if the rules permit the keeping of pets, subject to approval, and the trustees refuse to give their permission?

In the case of Body Corporate of the Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), Dorse kept a Yorkshire Terrier dog, without necessary approval. The trustees told her to house the dog elsewhere. She refused so the trustees brought an application to court for an order that she remove the dog from her section. Dorse opposed the application and brought a counter application to review the decision of the trustees to refuse her permission to keep the dog, and for an order that she be allowed to keep the dog on condition of specific circumstances.

When considering the question of whether the decision of the trustees was open to review, the court had to bear in mind whether the trustees had genuinely applied their minds to the owner’s application for consent or had refused it purely as a hard and fast rule to refuse all such applications so not as to create a precedent of allowing residents to house dogs. When considering the trustees’ reasons for the refusal of the owner’s application the court found that the decisive factors in refusing same were namely –

·        the general policy; and

·        the issue of precedent.

With regard to the general policy the court held that by simply applying a general policy the trustees had not truly applied their minds to the owner’s application and had not genuinely considered departing from the general rule.

Furthermore, the court found that the question of precedent was not a relevant consideration and ought not to have influenced the trustees’ decision. If each decision by the trustees to grant or refuse such permissions was to be considered on its own merits that decision would not constitute a precedent because it would be a decision based on the facts and circumstances relevant to the particular case under consideration. A refusal to grant permission in a particular case simply because it would create a precedent would be tantamount to a failure to consider and decide the application on its own merits and would result in a refusal to depart from the general policy of not granting permission. As such the court held the decision of a trustee was reviewable under the common law.

Ashley Madison: The Privacy Issues

A colleague, Mark Heyink, writes about the abuse of personal information.

© Mark Heyink 2015

Privacy Online www.privacyonline.co.za

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The hacking of the Ashley Madison website, which has as its logo “Life is Short - Have an Affair”, is one of the more dramatic examples of why the issue of privacy is so important. It graphically illustrates many of the questions relating to the abuse of personal information in the 21^st century and how the threats posed by evolving technologies, allowing for the abuse of information generally and personal information in particular, hold for our democratic society.

The “infidelity” or “cheating” website, as Ashley Madison has become termed, suffered a breach in which the personal information of 32 to 33 million customers was compromised. The sensitive information compromised included among other information seven years of credit card information, contact details, eMails and communications between participants. IT Web reports, quoting the Sunday Times, “that the personal information of over 70,000 South Africans (including many government officials and academics)” is among the information compromised.

When Ashley Madison’s parent company, Avid Life, failed to adhere to demands by the hackers, called the “Impact Team”, the personal information of customers was made public. By the nature of the website the publication of customers’ personal information has naturally caused severe embarrassment, hurt, disruption to families and law enforcement agencies in Canada have linked two “unconfirmed suicides” to the hacker’s publication of the personal information.

This gives rise to several issues which deserve consideration and debate. Firstly, there are those that take the attitude that the victims, by participating in the website, deserve the embarrassment and hurt that may come their way. This goes to the very core of privacy. We may all do things that others disapprove of. If what we do is not unlawful and we do it privately, a fundamental human right of privacy protects us. If we do not respect this right it is a very small step to allowing moral judgments to be exercised by publishing to the world the actions or communications made in private, for the advancement of political, commercial and social or even purely personal agenda and gain, regardless of the consequences to persons whose privacy has been infringed. In terms of our Constitution this is unlawful.

That the action of the hackers is unlawful is supported by the Canadian authorities formulating charges against them, which include the extortion, theft and mischief to property. Even though the enforcement of criminal charges against the hackers may prove problematical, this does not detract from the unlawful and morally reprehensible actions of the hackers. It serves to illustrate how anarchy on the web can be easily perpetrated if the right of privacy is not enforced and that, without the cooperation of governments, becomes difficult to counter. In the South African context this brings the delays in implementing appropriate legislation to protect citizens sharply into focus.

Ashley Madison is not blameless as it represented that it would protect participants’ privacy and it would appear that its security was seriously deficient. While it may suffer no criminal penalty, having reported the breach as required by Canadian law, the penalty for its failure lies in the enormous reputational damage that the website has suffered and the lawsuits which are likely to be brought against it. It is reported that a national class action of Canadian citizens claiming US Dollar 760 million will be instituted. It is also reported that Avid Life were not long ago, considering an initial public offering at a valuation of US Dollar 1 billion. One doubts that an IPO is any longer feasible or that any other potential purchasers would be found, so tainted is the website and the company’s image.

Another element of the fallout from the hack is that its CEO, Noel Biderman, has left by “mutual agreement”. This follows on from the replacement of Amy Pascal at Sony Pictures and the CEO of Target, after devastating hacks on those companies information systems compromised personal information of its customers.

While we may shake our heads at the failure of Avid Life to protect personal information the fact is that typically the boards of South African companies and institutions do not take information security seriously. The identification of government officials and academics whose interaction with Ashley Madison has been easily detected as a result of .gov.za and .ac.za extensions to the eMails used in their communication with Ashley Madison, is evidence of this disregard. Either these employees do not know that they should not be using their employer’s information and communication systems for these very personal purposes, or the policies and the enforcement of the policies by the employers are deficient. Which South African directors will, like Noel Biderman, be the first to “fall on their swords” for the general apathy and neglect that exists in implementing appropriate information security? It is not a case of if, but rather of when.

The framers of our Constitution have enshrined privacy as a fundamental human right. The Protection of Personal Information Act provides the framework necessary to protect against the abuse of personal information. We should do everything possible to prevent the right of privacy being subverted by government, big business, individuals or criminals in the advancement of “their agenda”.