News & Articles
Can you force a party to mediate a dispute?
“I have a growing dispute developing with a service provider and it looks like it may head to court. However, with delays and costs of litigation, I was wondering whether the option of mediation is not a better alternative. But can I force the other party to use mediation rather than going to court?”
Liability of an insurer after cancellation of a life policy
“My mother cancelled her life insurance due to financial reasons less than a week before she passed away unexpectedly. Despite her having paid her premiums for many years, the insurer is repudiating the claim saying that she cancelled her policy and was accordingly not covered anymore. Is this really the legal position?”
Servitudes 101: types of servitudes
You may come across the term servitude when purchasing property and not be sure what it means. We are happy to clarify in this first article of our law 101 series.
A servitude is a right that one person has over a movable or immovable property of another person. This right entails the use and/ or enjoyment of that property by the holder of the right.
Generally, there are two types of servitudes that you would normally come across; a personal servitude and a real (praedial) servitude.
Compensation Fund 101
The Compensation Fund
The Compensation Fund provides compensation to employees who are injured or contract diseases through the course of their employment. The Fund is governed by the Compensation for Occupation Injuries and Diseases Act (COIDA), which determines how the fund is administered, who is in charge of the administration, and the conditions for eligibility for compensation.
Can an email qualify as a last will?
“My aunt recently passed away suddenly due to Covid-19. In the hunt for her will, it transpired that she had sent an email to her attorney in which she had asked for amendments to be made to her will and for some of the beneficiaries to be removed. The attorney confirmed that he had not had opportunity to draft a new will before my aunt passed. Can her email be seen as her valid last wishes?”
Can adopted children benefit from a family trust?
“Sometime before his death, my father established a family trust which contained properties that were rented out to generate income for my mother. In accordance with the trust deed however, once my mother dies, the income from the properties would go to the children of my mother and father. I have an adopted brother and 2 biological sisters. There is now a debate as to whether my adopted brother also qualifies to benefit from the family trust. What is the legal position?”
The basics of starting a sectional title development
“I’ve inherited a piece of property that a few people have told me is ideal for a small sectional title development. I know it will be costly and take time, but was wondering if you could briefly explain to me what will need to happen for me to make this a reality?”
Which socio-economic contributions can be recognised for my BEE scorecard?
“Our company will no longer qualify as an automatic EME and we will have to undergo a formal BEE verification. We have always tried to help our community with donations and allowing our staff to help with charities. Will this count towards our socio-economic development points?”
Disclosure of medical records vs the right to privacy
“A client recently fell over boxes standing in the aisle in my store. He is suing me for damages claiming that the head injuries he sustained from the fall resulted in him being fired from work. I’ve heard from another source that he was dismissed because of a history of alcohol and drug abuse and that he has been in and out of rehabilitation. We’ve requested access to his medical and psychological reports, but his attorney refuses claiming medical privilege. Surely, this cannot be right, particularly if these can prove that there were other factors leading to his dismissal?”
Government and POPIA – applicable or not?
“With all the talk of POPIA coming into effect and businesses having to get ready to comply, I was wondering whether government and municipalities also need to comply with POPIA. Surely, government entities have a lot of personal information in their possession that they must protect.”
The little-known doctrine of vetustas (time immemorial)
Introduction
The doctrine of vetustas is an ancient legal doctrine that resurfaces every now and then in South African law. Despite being an ancient and almost forgotten doctrine, vetustas has been able to assist communities in gaining rights to land that they have used or had access to for a very long time. The doctrine relates to a right that has been exercised and has been in existence since “time immemorial”, and no one can verify when it arose. The two cases of Langebaan Ratepayers’ and Residents’ Association v Dormell Properties 391 (Pty) Ltd and Community of Grootkraal v Botha NO indicate how the doctrine is applied.
Phantom share schemes – a very real option for incentivising your key staff
“Our family owns a very successful agriculture company that has been built up over the years by our family. We have a number of employees that have also shown their value to the business and we would like to retain and reward them by giving them shares in the business. However, we feel strongly about the family nature of our business and don’t want a large number of shareholders with accompanying shareholder rights we have to involve in every decision. Is this possible to achieve?”
Can you sell your commercial property and help finance part of the deal?
“We’re a small building developer and have invested quite a bit in building some high-end commercial properties. The problem is many of our interested buyers cannot get a 100% loan from the bank and this usually sinks the deal. Can we as developer help finance the loan shortfall for a potential buyer?”
The benefits of learnerships for your business
“I have been informed by a colleague that I may need to look at implementing learnerships to improve the BEE level of my company. How do learnerships work and can they really provide such a benefit?”
When do maintenance obligations prescribe?
“My ex-husband has for some time now not paid his maintenance as per the court order. Because I had a job and was earning a basic income, I just left it as I didn’t want the hassle of trying to get him to pay. Now I’ve been retrenched and have asked him to pay his outstanding maintenance, but he refuses and says his attorney told him that his obligation to pay has prescribed. Surely this can’t be right?”
Wrong funds in your account? What can you and your bank do with the funds?
“I recently had the situation where a third party accidentally paid a sum of money into our business account. Our banker saw the amount and asked whether it could be used to settle some of our company’s debt with the bank. When informed that it was not our money, the re-transfer to the third party was arranged. However, I was wondering what would have happened if we had used the money or the bank had taken it to settle our debt with it.”
Increase in minimum wages for farm and domestic workers
“I’m a farm owner and was wondering what the new minimum wages announced by Government will mean for my farming business?”
The Information Officer and POPIA: What you need to know
“I am the compliance officer for our retail business. I’m aware of the deadline of 1 July 2021 to be POPIA compliant and we are busy putting the necessary in place. I’ve recently heard that the Information Regulator now requires information officers to be registered with the Information Regulator. Is this true and what are the main responsibilities of an information officer?”
What does the new minimum earnings threshold mean for employers?
“I noted recent media reports that indicated that a new minimum earnings threshold for employees has been promulgated. Is this correct and what does this mean for business owners?”
Personal servitudes and how they apply to agricultural land
What is a personal servitude?
A personal servitude is one in which a specific person acquires certain rights and powers of use over a specific thing or property of another person. The rights of the specific servitude attaches to a person in their personal capacity. Therefore, if the person dies, the servitude will lapse together with all the rights given to the servitude holder over the specific property of the other person. In general, the duration of a personal servitude is directly connected to the lifespan of the holder of the servitude.
Are you liable for interest on municipal rates accounts not received?
“I purchased my first house a few months ago and have never received a municipal rates and taxes account from the municipality. I tried a few times to call the municipality but no one got back to me. When I eventually went to the municipality, I was informed that I am in arrears and that they have charged me interest even though I never even received an account. Can they do this?”
POPIA deadline looming and regulations about to take effect
“I own a local store making custom items for our clients. Because of the nature of some of the client requests I have to use other suppliers and have to share basic information about my clients with them. I am aware of POPIA and I understand that we need to comply including to new regulations that I understand have been issued. My question is to what extent and by when will I need to meet all these requirements?”
Skills Development remains a vital aspect in your BEE planning
“Our company falls under the Generic BEE Codes. As we are 51% Black-owned but under R50 million turnover we have not undergone BEE verification but relied on a signed BEE affidavit confirming that we are an automatic level 2 B-BBEE contributor. Now it appears we may exceed the R50 million mark this year and have to verify as a Generic Enterprise. As HR manager I have now been tasked with getting our skills development planning in place should we need to verify. Where do I start?”
Data breaches in terms of POPIA: what you need to know
“Our consultancy business has quite a diverse client base. Over the weekend, the laptop of one of our employees was stolen. The laptop contains personal information of our clients and it appears that it was not password protected making the data accessible. Will this be a data breach in terms of POPIA, and if so, what are we required to do?”
POPIA: the role and liability of an operator
The Protection of Personal Information Act (POPIA) defines a number of different persons who may either be involved in and/ or responsible for the processing and protection of personal data, or, alternatively, are the persons to whom such personal data relates. One of these persons is the “operator”.
Buying or selling a property and unsure what costs you will be responsible for?
The buyer will be...
Who must submit a compliance report in terms of section 13G of the B-BBEE Act?
“I recently saw an article about the B-BBEE Commission requiring BEE compliance reports to be submitted to it. I don’t really know what a compliance report is or who must submit such. Will my business have to do this?”
The final say on business interruption insurance and Covid-19
“I’ve been following the media reports relating to the Café Chameleon case and their claim that their business interruption insurance covers losses suffered due to Covid-19. The last I heard was that this case was being appealed by the insurer. I have a similar argument going with my insurers, and would like to know whether there is any finality yet on the matter.”
Good news for offshore structures
“I noted an article the other day that referred to tax restrictions for loop structures. What is a loop structure and how have restrictions been reduced?”
Can my employee refuse to come to work because of Covid-19?
“Although we are nearing the tail-end of the Covid-pandemic, I still have a number of my employees that are refusing to come to work because of Covid-19. I’ve tolerated them being at home, but my problem is that there is very little work they can do from home, yet I have to pay them. Can I force them to come back?”