Q: AM I ENTITLED TO CLAIM UIF PAYMENT IF I RESIGN FROM MY EMPLOYMENT?

A: In terms of Section 16 of the Unemployment Insurance Act 63 of 2001 an unemployed contributor is entitled to unemployment benefits for a period of unemployment lasting more than 14 days, if the reasons for his / her unemployment are one of the following:

a) The contributor's contract of employment has been terminated by the employer or a fixed term contract has ended.

b) The contributor was dismissed - this dismissal has to be one as defined in section 186 of the Labour Relations Act 66 of 1995.

c) Insolvency occurred in terms of the provisions of the Insolvency Act 24 of 1936.

Based on a reading of the relevant section at this point, an individual is not entitled to unemployment benefits in cases where the contributor has resigned from employment.

Should the person be aggrieved by the refusal to pay unemployment benefits s/he could lodge an appeal with the Appeals Board or the CCMA in the case of constructive dismissal.

Q: HOW DOES THE LAW PROTECT ME IF I WORK AT NIGHT?

A: The Basic Conditions of Employment Act 75 of 1997 protects employees who work at night.

“Night work” means work performed after 18h00 and before 06h00. An employer may only allow an employee to perform night work if the employee agrees to work at night and if:

• the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
• transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.
• Employers are advised to ensure that employees doing night work are informed of the health and safety hazards associated with night work.
• An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 must inform the employee in writing, or orally if the employee is not able to understand written communication, in a language that the employee understands, of any health and safety hazards associated with the work that the employee is required to perform and of the employee’s right to undergo a medical examination.

Q: WHAT IS THE DIFFERENCE BETWEEN BEING MARRIED IN COMMUNITY OF PROPERTY AND OUT OF COMMUNITY OF PROPERTY?

A: The consequences of a marriage in community of property is that everything each spouse owned (and their separate debts) before the marriage, are put together in a joint estate. Everything acquired by the married couple during their marriage, also becomes party of the joint estate. The husband and wife have equal shares in the joint estate, even if they do not contribute to it equally. Upon divorce the joint estate is divided into two equal halves. The one half is allocated to the husband and the other half to the wife.

Marriages that are concluded out of community of property can either include or exclude the accrual system. In both instances an ante-nuptial contract (ANC) is necessary. An ante-nuptial contract is where the parties reach an agreement before they get married on how their estates must be controlled and administered. The husband and wife have separate estates and each control their own estate. Different ante-nuptial contracts exists, such as:

Out of community of property without the accrual system:

The effect of this will be that both spouses have completely separate estates that are administered separately. No spouse will have a claim against the other one to share in the spouse’s financial growth. If a couple wants to get married out of community of property, without the accrual system, they must expressly exclude the accrual system in their ante-nuptial contract.

Out of community of property including the accrual system:

The accrual reflects the growth in the estate of a spouse. The idea behind the accrual system is that, upon dissolution of the marriage, both spouses should share in the assets that have been acquired through joint efforts during the existence of the marriage. This happens without their having a joint estate. During the existence of the marriage it is completely out of community of property. It is only once the marriage ends that both spouses share equally in the growth that the spouse’s estate has shown during the course of the marriage. Each spouse keeps their own assets and administers their own estate. Each spouse also retains everything they acquire during the marriage.

Q: I AM THE FATHER OF A CHILD BORN OUT OF WEDLOCK. HOW CAN I OBTAIN CUSTODY AND ACCESS TO MY CHILD?

A: Until February 1999, the natural fathers of children born out of wedlock had no rights regarding their children. These fathers, however, were obliged to pay maintenance towards the upbringing of the children. The implementation of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997, changed the above-mentioned position. The Act provides for the natural father of a child born out of wedlock to:

• Obtain access rights to the child
• Obtain custody of the child
• Obtain guardianship of the child
• Be notified in writing of any adoption proceedings regarding the child

To enforce these rights, the father has to bring an application to the High Court. The Court shall grant the application if it is in the best interests of the child.

Q: I AM DIVORCED AND WOULD LIKE TO CHANGE MY DAUGHTER'S SURNAME TO MY MAIDEN NAME – WHAT MUST I DO?

A: You must apply to the Director – General at the Department of Home Affairs for the alteration of a minor’s surname. The application form is called an Application for alteration of surname of minor (BI – 193) and it is available from a Department of Home Affairs Office or from the Home Affairs Website: http://home-affairs.pwv.gov.za

Q: I LIVE IN A SECTIONAL TITLE UNIT AND WE HAVE RECENTLY RECEIVED HOUSE RULES - ARE THE BODY CORPORATE ALLOWED TO GIVE US ADDITIONAL RULES?

A: The rules of a Sectional Title Scheme constitute the heart of the operation of a sectional title project. Each scheme requires its own specific set of rules depending on the type of development, that is whether it is residential, commercial or a mixed scheme.

The use and enjoyment of sections can also be regulated in greater detail in the house rules. House rules deal with minor matters and are made either by the trustees or by a majority decision of the sectional owners in general meeting and may be amended in the same way if necessary. House rules deal with such matters as controlling the use of domestic appliances, the times when musical instruments may be played, whether flower pots and plant boxes are permitted to decorate balconies and whether hobbies involving noise, like carpentry, are permitted in apartments or garages. Further examples of house rules are restrictions on parties after midnight, the playing of ball games.

Depending on the character of the scheme, it has become customary to prohibit certain activities by occupants of a section.

Q: WHAT ARE MY OBLIGATIONS AS A LANDLORD IN RESPECT OF HOLDING MY LESSEES DEPOSIT?

A:In accordance with section 5 of the Rental Housing Act No 50 of 1999, a landlord may require that a tenant pay him / her a deposit, prior to moving into a dwelling. This deposit may not, at that time, exceed an amount equivalent to an amount specified in the lease agreement between the parties.

It is a further requirement of the Act that this deposit must be invested by the landlord in an interest-bearing account with a financial institution, i.e. a bank. The landlord must pay the tenant interest at the rate that is applicable to this account and the tenant can request from the landlord, during the period of lease, to provide him / her with proof of the interest that has accrued to the deposit.

Note that, at the end of the lease, the landlord may of course apply the deposit and interest towards payment of amount the lessee may be liable for under the lease. This includes reasonable costs that may be due in respect of repairing damage to the dwelling that may have been caused during the lease or perhaps the replacement of lost keys. Should there be a balance, after settling these expenses, the landlord must refund the balance of the deposit and interest (if any), not later than 14 days of restoring the dwelling.

Receipts to verify this repair / replacement costs must be available for inspection by the lessee.

Q: I HAVE BEEN BLACKLISTED. HOW LONG WILL MY NAME REMAIN ON THE CREDIT BUREAU RECORDS AND HOW DO I GO ABOUT HAVING MY NAME REMOVED?

A:There are two ways in which a person can be listed on the Credit Bureau Records:

a) Default Notations
b) Judgment

In the event that a person is listed by default notation, the listing remains on the system for 3 years. These listings include slow payers, bad payers, i.e. persons that do not pay their accounts as regularly, as required by agreement. After 3 years, these listings are automatically removed, unless ITC receives information to the contrary from the credit grantor.

In the event of a listing due to a judgment having been granted by Court, Civil Court Judgments will be stored for 5 years, unless the judgment is rescinded by a Court. After a period of 5 years, if the judgment is not rescinded prior to that date, the judgment will automatically be removed from the credit profile.

Q: WHAT IS THE DIFFERENCE, IF ANY, BETWEEN BEING LIQUIDATED AND SEQUESTRATED?

A: Both these terms are relevant to Insolvency, which literally means the inability to pay.

A person is sequestrated. A company is liquidated. Thus, both actions take place when a person / company is insolvent.

Note however the difference in terminology.

Q: MY NEIGHBOUR'S TREE IS HANGING INTO MY YARD. WHAT SHOULD I DO?

A:

You have two options available to you: You may ask your neighbour to cut the branches and remove them from your property If the neighbour refuses to cut the branches, you may cut the branches that hang into your property You may not keep the cut off parts unless your neighbour refuses to collect the branches If you remove the branches, you can recover the amount of money for removing the branches from your neighbour or If you do not want to remove the overhanging branches, you may obtain an interdict from your nearest Magistrate’s Court. The interdict will force the neighbour to cut the overhanging branches.

Q: IF I MAKE A MISTAKE IN A CONTRACT, IS THE CONTRACT STILL VALID?

A: A contract is valid if the following requirements are met:

• the parties to the contract must have contractual capacity;
• the parties must reach an agreement;
• the contract must be lawful;
• it must be possible to render performance in terms of the contract.

If an error is made in a contract for example, an incorrect date, the error made on the contract does not render a contract invalid. Such a mistake can be rectified by means of rectification. Rectification is the correction of the written record and does not allow for any additional terms to be included in the contract. Therefore omitted words may be added, extra words may be deleted and incorrect words may be replaced by means of rectification so that the mistake may yield to the truth of the matter.

Q: POLICE HAVE BEEN ARRESTING PEOPLE WITH OUTSTANDING TRAFFIC FINES. MY QUESTION IS: IF YOU DID NOT RECEIVE A SUMMONS, CAN THE POLICE LEGALLY ARREST YOU?

A: Once a summons has been issued by the Clerk of the Court it must be delivered by the Sheriff of the court. He or she must deliver the summons to the person prescribed in the summons. If he or she cannot be found, the summons must be delivered to his/her residence or place of employment and given to a person apparently over the age of sixteen years and apparently residing or employed there.

An arrest should be affected only after a warrant for the arrest has been obtained. It is only in exceptional circumstances that the police are authorised to arrest anyone without the authority of a warrant. An arrest without a warrant which is not specifically authorised by law is unlawful. 

In terms of section 39(2) of the Criminal Procedure Act “The person affecting an arrest shall, at the time of affecting the arrest or immediately after affecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested, hand him a copy of the warrant”.

Q: I AM BEING HARASSED BY A PERSON. WHAT REMEDIES ARE AVAILABLE TO ME?

A:

You can apply for an interdict. An interdict is an order of court. It enjoins a respondent to refrain from doing something, or orders a respondent to do something. The stipulations for the right to claim an interim interdict are: a prima facie right (at first sight); a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; that the balance of convenience favours the granting of an interim interdict; and that the applicant has no other satisfactory remedy. An interim interdict is always sought by way of application.

Q: I SIGNED A RESTRAINT OF TRADE AGREEMENT WHEN I COMMENCED EMPLOYMENT. WHAT IMPLICATIONS DOES THIS HAVE?

The doctrine of restraint of trade may affect the enforceability of contracts restricting competition. The two main forms of such contracts concern potential competitors, namely where the seller of the goodwill of a business undertakes not to carry on a similar business in competition with the purchaser, and where an employee agrees with his or her employer not to compete against the employer by setting up his or her own rival business or by entering the service of a rival trader. Contracts in restraint of trade may, however, also be concluded between existing competitors.

An employer can institute legal action against you should you work in direct competition.

Q: WHAT IS THE PURPOSE OF A DISCIPLINARY CODE AND WHAT FORMS OF DISCIPLINE ARE THERE?

A: The purpose of a disciplinary code and procedure is to regulate standards of conduct and incapacity of employees within a company or organisation. The aim of discipline is to correct unacceptable behaviour in the workplace. This also creates certainty and consistency in the application of discipline.

The employer needs to ascertain that all employees are aware of the rules and the reasonable standards of behaviour that are expected of them in the workplace.

The employee needs to comply with the disciplinary code and procedures in the workplace.

Before deciding on the form of discipline, management must meet the employee in order to explain the nature of the rule s/he is alleged to have breached. The employee should also be given the opportunity to respond and explain his / her conduct. If possible an agreed remedy on how to address the conduct should be agreed on.

Disciplinary action can take a number of forms, depending on the seriousness of the offence and whether the employee has breached the particular rule before. The following forms of discipline can be used (in order of severity):

• Verbal warning
• Written warning
• Final written warning
• Suspension without pay (for a limited period)
• Demotion, as an alternative to dismissal only; or
• Dismissal

Q: I APPLIED FOR CREDIT TO BUY FURNITURE . I HAVE SIGNED THE AGREEMENT BUT WOULD LIKE TO CANCEL THE CONTRACT. HOW DO I CANCEL THE CONTRACT?

A: In terms of the Credit Agreements Act, when any credit agreement in respect of which the initiative emanated from any credit grantor or his manager, agent or employee, is signed by any credit receiver at a place other than the business premises where the credit grantor or his manager, agent or employee ordinarily carries on business, the credit receiver may within five days after the date of the credit agreement terminate it by notice in writing delivered or sent by prepaid registered mail to the credit grantor, and by tendering the return of any goods delivered to him in terms of the credit agreement. The period of five days shall be calculated with the exclusion of the day upon which the credit agreement was entered into and of any Saturday, Sunday or public holiday.