Urgent access to courts during the lockdown

Because of the Covid-19 crisis, access to our courts is limited to urgent and essential matters only.

Divorced and separated parents may be feeling desperate, angry and frustrated about losing their contact to their children during the lockdown. Whilst parents cannot lawfully break the curfew and move children from one home to another in terms of a parenting plan/court order/agreement, there may be circumstances – in the best interests of children – where you can approach the court for urgent relief. The courts will only entertain applications to enforce parenting orders if they are genuinely urgent.

Or you may be in a situation involving domestic violence or harassment.

To assist you with any urgent matter you may have, we offer a free 30-minute e-consultation, to provide advice on proceeding in urgent and/or essential matters. If you would like advice, please email info@bmalaw.co.za and we’ll put you in touch with one of our attorneys.

Whilst entry into the courts and court precincts is only allowed in respect of urgent and essential matters, heads of courts retain the discretion to authorise the hearing of matters through teleconference or videoconference or any other electronic mode, which dispenses with the necessity to be physically present in a courtroom.

These are some of the matters that are considered urgent:

·         Service of domestic violence protection orders

·         Service of protection from harassment orders

·         Service of process relating to claims which are prescribing

·         Service of urgent court process in family law matters

·         Removal of children in need of care and protection

·         Placement of children in child and youth care centres; and

·         International child abduction cases.

Except in the cases of genuine urgency, we should not be trying to find loopholes, but abide by the principle of lockdown in order quite literally to save lives.

Employers and Covid-19 in South Africa

As we enter the National 21-Day lockdown, business owners are understandably confused and concerned about its economic consequences. Will their businesses go belly up and what happens to employees, if they can’t afford to keep them on or pay them?

Although a business owner would never want to dismiss, retrench or short time its employees, what happens if there is no business – or one that is just surviving – at the end of the lockdown.

What follows is a summary of options open to employers. This is not meant to be legal advice and employers are encouraged to seek legal help during this evolving time.

Employment Contract:

An employer can change terms and conditions of employment by consultation and negotiation. A contract can be varied relating to salary reduction, bonus waiver or reduction, compulsory use of annual leave during the shutdown period and so forth. The point to remember is that there must be consultation with employees and not a unilateral implementation of a change to terms and condition imposed by the employer. In the event the employer and employee do not reach consensus on the variation of contract, the employer may initiate retrenchment procedures if needed.

During the lockdown, and where practical, the consultative processes can be conducted by e-meetings, emails or over the phone. It is important that agreement reached must be reduced to writing (even confirmation via WhatsApp would suffice if the normal conditions of a binding variation of a contract are met).

Retrenchment:

S189 of the Labour Relations Act 66 of 1995 provides inter alia that an employer can dismiss one or more employees based on operational requirements. Employers could safely argue that the impact of COVID-19 on their business negatively impacted its operations on some level. Bear in mind that a S189 process has guidelines that must be adhered to and attracts statutory payments like severance pay, notice pay, outstanding leave pay-out and so forth. To minimise job loss, alternatives to retrenchment may be offered during consultation. Alternatives include but are not limited to, short-time implementation and/ or temporary layoffs. Furthermore, and in accordance with Section 41 (4) of the Basic Conditions of Employment Act 75 of 1997 (BCEA): “An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay”.

Annual leave

Can an employer “force” an employee to take annual leave during the lockdown?

Annual leave is regulated under Section 20 of the BCEA. Section 20(10) provides inter alia that annual leave must be taken in accordance with a written employment contract between an employer and employee. If there is no agreement, annual leave must be taken at a time determined by the employer in accordance with Section 20.

It is therefore our view that employers could during this unprecedented time, engage with employees, where written employment contracts are in place, to vary terms and conditions of employment to have employees take their annual leave during the lockdown period. If there are no contracts in place, an employer can determine when annual leave must be taken and call on employees to take their annual leave during the lockdown period.

This enforced leave will not apply for periods of self-isolation or quarantine and only applies to the statutory portion of annual leave (i.e. 15 business days).

Please bear in mind, should the employee fall ill during the annual leave period, sick leave is applicable.

Relief Schemes:

President Ramaphosa mentioned certain relief schemes which an employer would be able to access.

The Department of Labour has taken measures to accommodate alternatives to retrenching staff over this period by allowing employees to claim from the UIF.

Contact Labour’s , Mr Jaco Lessing discusses the following measures:

• National Disaster Benefit
• Reduced working time and/or forced shutdown
• Death Benefit

National Disaster Benefit

If the company needs to close as a direct result of the Corona virus and the employer cannot pay his employees for this period, the employer can apply for the “National Disaster Benefit” from the UIF. This benefit is paid at a flat rate of R3500 per employee irrespective of income for the duration of the shutdown or 3 months (whichever may be shorter). This benefit cannot be used in conjunction with any other UIF benefit.

Documents to complete:

• UI19 and UI2.7 (Completed by employer)
• UI2.1 (the application)
• UI2.8 (completed by the bank)
• Copy of employee’s ID document
• A letter from the Employer confirming company shutdown is due to the Corona Virus

Reduced working time and/or forced shutdown

Where a Company shuts down for a certain period or implements Short Time, for every 4 days worked the employee accumulates 1 credit day, and maximum credit days payable are 365 for every four completed years of service.

Documents to complete:

• UI19 and UI2.7 (Completed by employer – choose option 17 on the UI19 document)
• UI2.1 (the application)
• UI2.8 (completed by the bank)
• Copy of employee’s ID document
• A letter from the Employer confirming company shutdown is due to the Corona Virus

Death Benefit

Benefits are paid to the beneficiaries of the deceased. People eligible to apply are a Spouse, Life Partner, Children and nominated persons, in that order.

Documents to complete:

• UI19 and UI 53 (completed by the Employer)
• UI 2.5 or UI2.6 (deceased application)
• Death Certificate
• ID of deceased and applicant
• UI 2.8 (bank form completed by the bank)
• Copy of ID documents.

How to apply for these benefits?

Employers must complete the UI 19 Form stating the last date of termination and the reason thereof. The forms can be submitted by emailing the application to the nearest UIF processing Centre. (Reduced Work Time/Death benefits)

A business opens next door to your home. What are your rights?

If the business is, say, that of an accountant, and makes little or no noise, you may choose to turn a blind eye. But what if the business causes a noise nuisance (or you simply object to a neighbour running a business in your suburb)?

In McKay and Others v Ursiweb (Proprietary) Ltd and Others (3510/2019) [2019] ZAFSHC 232 the court had to decide if a construction company, that opened an administrative office in a suburban area, manned from 8 am to 4.30 pm on weekdays by a staff of four (with the occasional visitor) was entitled to do so.

Neighbours applied to court for an interdict against the running of any business on the property. They had, they said, “acquired their properties with a keen expectation of residing in a residential suburb with amenities that are consistent with a residential suburb and with a residential character”.

Part of their argument in support of the interdict was that one of the restrictive conditions in the offending property’s title deeds read “this erf shall be used for residential purposes only and no trade or business or industry whatsoever shall be conducted thereon”. 

The business owners tried to argue, unsuccessfully, that the interdict should fail because the suburb’s character had been changing over the years with businesses moving in, including a large shopping mall; that the business had applied to the local council for re-zoning and removal of the title deed restriction over a year before, no objections had been received and it had in fact been supported by at least one neighbour; that although the rezoning application had yet to be granted or declined, council was already collecting rates and taxes payable by business and commercial properties, and that the office caused no nuisance to anyone in the area.

The Court found that “the essence of town planning schemes is conceived in the interest of the community to which it applies” and the complainants lived “in an area affected by an applicable zoning scheme”. Further, that the applicants had “protectable interests” and were entitled to enforce their rights under the planning scheme.

The court granted the interdict with costs.

What are your rights and obligations, if you want to start a business in a residential area?

Have a town planner check what title deed restrictions and zoning rights apply to your property (or to a property you want to buy to run a business from).

It is possible that your local town planning scheme may allow a small-scale “home enterprise” or “micro business” either without municipal consent or with a municipal permit. Or you may need to formally apply for rezoning for business use. Even if the local authority grants consent use if a restrictive condition remains in place on the title deed, preventing such use, running a business from the property will still be unlawful until such condition has been amended or lifted.

Must divorcing parties attempt to mediate their dispute?

Mediation as a Dispute Resolution Mechanism

Mediation assists both parties in working out arrangements for themselves and their children instead of handing over control of their affairs to a court.

The process reduces conflict by helping couples consider the issues that need to be settled and the various options for settlement that may be available to them. It helps couples work toward financial settlements and focus on children’s feelings and needs, encouraging parental cooperation wherever possible.

It is trite that a consensus-seeking process rather than adversarial proceedings result in a saving of both time and legal costs. 

Our law defines 'mediation' “as a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute”.

It is an unfortunate and sad fact, as was pointed out by judge Blieden in Clemson v Clemson [2000] 1 All SA 622 (W), that “divorce proceedings are normally traumatic events for those directly affected by them” and that the court “expects attorneys acting for their clients as professional people and officers of the court, to display objectivity and sound common sense in assisting their clients. Fortunately, most attorneys perform this task admirably. However, there is a minority of attorneys who approach each divorce as a war between the two litigants. The rules of court and legal principles are utilised as weapons in a fight to destroy the opposition. As happens in most wars of attrition, by the time the war has come to an end both sides have lost. There is now permanent hatred between the parties and their joint assets have been consumed to pay legal fees”.

Until recently, there was no statute obliging divorcing parties to mediate.

Historically, three cases dealt with the importance of mediation in family law matters.

In 2003, in Van den Berg v Le Roux, Judge Kgomo ordered the parties to privately mediate all future disputes with regard to their 10-year-old daughter and ordered that only subsequent to the conclusion of the mediation process could either party approach a competent court which has jurisdiction to decide the dispute.

In 2004, in Townsend-Turner and another v Morrow the full bench of the Cape Provincial Division of the High Court made a similar decision when confronted with an access dispute between the father of a 7-year-old boy and the boy's maternal grandmother. The parties were ordered to attend mediation offered by private mediators of their own choice or those proposed by the office of the family advocate in an effort to resolve the issues of conflict between them including, of course, the issue of access. The court ordered that the mediation had to commence within two weeks of the granting of the order that it should continue for a period of at least three months or for the duration of at least four mediation sessions. The parties were also ordered to share equally the costs of the mediation.

In 2009, acting Judge Brassey in Brownlee v Brownlee (2008/25274) found that disputing parties had a duty to attempt to mediate the dispute and that the opposing attorneys should have encouraged mediation. The judgment emphasised the virtues of mediation and also capped the fees of the attorneys on both sides because they had failed to advise their clients to attempt mediation at an early stage and to avoid the delays and expense of running a trial. Normally an unsuccessful litigant pays the costs of the successful one. Judge Brassey expressed his disapproval of the parties' conduct and made each party bear their own costs.

The Brownlee case puts parties and their legal team at risk if they do not attempt to mediate the divorce dispute at an early stage.

The law now does the same.

Effective from 9 March 2020, Rule 41A of the Uniform Court Rules of the High Court provides that in every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.

A defendant or respondent shall, when delivering a notice of intention to defend or a notice of intention to oppose, or at any time thereafter, but not later than the delivery of a plea or answering affidavit, serve on each plaintiff or applicant or the plaintiff’s or applicant's attorneys, a notice indicating whether such defendant or respondent agrees to or opposes referral of the dispute to mediation.

If the parties so agree, the litigation will be stayed pending the outcome of the mediation process. The parties sign an agreement to mediate and the process of mediation shall be concluded within 30 days from the date of signature of agreement (but a Judge may on good cause shown by the parties extend such time period for completion of the mediation session).

Unless the parties agree otherwise, liability for the costs of a mediator shall be borne equally by the parties participating in mediation.

If either party opposes the referral of the dispute to mediation, it must advance sound reasons for the opposition.

Failure to agree to mediation or to advance good reasons, may entail a costs and/or punitive costs order against the recalcitrant attorney and/or his client.

Can a court hear evidence via video conferencing?

Can a court hear evidence via video conferencing?

In the matter of MK and TRANSNET LTD t/a PORTNET, heard by the Kwazulu-Natal Local Division of the High Court under case number A105/2004, Mbatha J, had to decide if an applicant, seeking damages from Transnet, could give evidence at a law firm and be cross-examined, in Yugoslavia, by way of a video conference link, and for Transnet and its legal representatives to monitor and be present in South Africa, during the process.

By way of background, the applicant sued Transnet for damages arising from an accident that happened at the Durban Port, resulting in the death of her son. Transnet conceded that the mother had a claim relating to her deceased’s son’s duty to support her, and other damages. The only outstanding issue was the determination of the quantum of damages in respect of the loss suffered by the mother.

The mother was in her 80’s and was too frail to come to South Africa to give evidence.  Besides, she could not afford the costs of travel from Montenegro and accommodation for her and a chaperone in Durban. Her lawyers asked the court for permission for her to testify via video conferencing.

In deciding if the mother could adduce oral evidence by way of video link conference, the court considered that:

·         Although giving evidence through video link and other social media mechanisms is a novelty in South Africa, technology is so advanced to a point that direct evidence can be taken from a witness in another country and cross-examination can take place whilst the witness is visible to all.

·         If evidence is placed before the court in this manner, was justice is likely to be done? ‘A party seeking to dispense with a personal appearance of a witness must show that it is “necessary for the purposes of justice that the ordinary way of taking evidence should be departed from”’. The convenience must not only be for the applicant but also for the respondent and the court.

·         Will there be any undue prejudice to the other party in the presentation of the evidence in this format (as the plaintiff was visible to all, could be cross-examined and could give evidence under supervision of the attorney elected by any of the parties).

·         Will the court be able to observe the demeanour, personality and conduct of the applicant and whether there will be an opportunity for cross-examination if the evidence is tendered through video link in a locality which lawyers cannot reach?

The judge weighed a number of factors, including old age, serious illness and costs of travelling and other incidental costs, and found that the mother would not be able  to give oral testimony in the Durban High Court due to her advanced age and serious illness.

Quoting section 173 of the Constitution, the judge found that the high court had powers to regulate its own processes in the interests of justice, if it was convenient and fair and just and equitable in the circumstances. She also mentioned section 34 that ‘Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial forum.’

The court found that the hearing with the aid of a video link conference would be a public hearing in a court of law, where all the parties would appear before a judge seized with the matter. The judge found no reasons why such evidence could not be admissible in any court of law. The court made an order that the mother could give evidence at a law firm and be cross-examined, in Yugoslavia, by way of a video conference link, and for the legal representatives of Transnet to monitor and be present in South Africa, during the process.