“I never knew of a morning in Africa when I woke up that I was not happy.” (Ernest Hemingway)

 Are you a visitor dreaming of waking up with giraffes on your lawn and wondering how to make it happen? Or a local being asked by overseas friends and relatives: “This country’s magic, how can I buy myself a property here?” We have all the answers…

First up, can you even buy as a foreigner?

The good news here is that we’re as welcoming to property buyers as we are to visitors! Foreigner or local, there are very few restrictions on buying SA property – and many reasons to do so. 

Why buy South African property? 

Whether you’re looking for a holiday home, an emigration or retirement option, or just an investment, there are a host of advantages to buying a property in South Africa:

• Affordability: South Africans have become used to the rand consistently underperforming against most other currencies. The latest “Big Mac Index”, for instance, shows the rand as 50% undervalued, making it the ninth weakest currency on the index. The stronger your home currency, the more affordable even very high-end South African properties will be for you.
• Blue skies ahead for property: For a variety of economic and political reasons, the general consensus is that 2025 should present significant growth opportunities in both the residential and commercial sectors. 
• Options, options, options: South Africa offers a wide range of properties, with popular options including coastal homes, secure complexes, luxury suburban houses, vibey city apartments, bushveld estates, and retirement communities. You’re sure to find something to meet both your preferences and your investment goals.
• Capital growth potential: Property provides a stable asset in South Africa, with great potential for capital appreciation.
• Strong legal protections for property owners: Our legal system, with an effective land registration process at its core, provides robust property rights for both foreign investors and locals.
• Potential for rental income: Our strong tourism sector and consistent demand for rental properties, combined with the affordability aspect we touched on above, provide attractive opportunities to generate rental income.

How can you finance the purchase?

Foreign buyers can obtain mortgage bonds from South African banks, typically financing up to 50% of the property’s purchase price, with the balance funded through foreign currency brought into the country. Some banks are more flexible than others in this regard, with non-residents who live and work here qualifying for up to 75% loans (possibly even more if motivated) with some lenders. 

You must transfer the monies from abroad via a bank or other authorised dealer. To simplify the process of repatriating funds when you eventually sell the property, ensure that your title deed is endorsed “Non-Resident” and keep proof of the original inflow of funds. 

Make it clear in the sale agreement that you will be importing funds from overseas – and be sure that the deadlines set for you to pay the deposit, to get bond approval, and to pay the balance of the purchase price, are all realistic. It goes without saying that you should get a local lawyer to check every aspect of the agreement carefully.

How does the registration process work?

It all begins with you making an offer, which – if accepted by the seller – becomes a deed of sale or sale agreement. This is followed by the transfer of ownership of the property to you in the local Deeds Office in a process managed by a conveyancing attorney. Count on it taking about three months – perhaps a bit less if all goes smoothly or a bit more if there are unexpected delays. 

If you won’t be here that long, you will need to sign transfer and bond documentation overseas – normally at a South African embassy/consulate or (in some countries) before a Notary Public or other authorised person. Ask the conveyancer for advice specific to your country.

Taxes and other costs to consider

Foreign buyers are subject to local taxes, including transfer duty (a government tax levied on property transactions) and other costs of transfer. A cash flow projection will ensure that you are able to pay these as they fall due.

If you sell your property at some point, Capital Gains Tax may apply to the profit you make from the sale. 

Will I still need a visa?

Owning property here does not give you any form of residency status, so you will still need a valid visa, work permit or residence permit as applicable.

Ask us for the details. We’ll help you to understand all the legal and financial requirements, and to navigate the processes involved. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“To be prepared is half the victory.” (Miguel de Cervantes, author of Don Quixote)

Perhaps you’re a director losing sleep over the risk of losing everything if creditors sue you personally for your company’s debts because you’re asset-rich, and they can’t squeeze anything out of the company. Or maybe you worry about the company itself suing you for losses it suffers because of something you have or haven’t done.

There can be big money involved, as we shall see from the SCA (Supreme Court of Appeal) case below, so those are risks well worth keeping a close eye on. Preparation really is key here.

The general rule 

Our law has long accepted that a company has a legal personality separate from its directors and shareholders, trading in its own name and holding its own assets and liabilities. So, the good news is that, as a general rule, directors are not personally liable for their company’s debts unless:

• They sign personal sureties for those debts, or
• They breach their legal duties as directors. 

The not-so-good news is that those duties are many and onerous. In a nutshell, as a director, you must always perform your duties with integrity, care and diligence, without being reckless or fraudulent, without breaching your duty to act in good faith, and in the best interests of the company. 

A case in point – directors sued personally for R41m

A goods importer sued the directors of a clearing and forwarding agent in their personal capacities for R41.4m. This after the agent had taken money from the importer to pay the VAT it owed, but had only paid part of that sum over to SARS. That left the importer having to pay SARS the shortfall plus interest and penalties. 

On highly technical grounds (to do with the wording of various sections of the Companies Act), the importer’s claim was thrown out of court by firstly the High Court, and then by the SCA on appeal. 

The importer now has an opportunity to amend its papers and to have another go at the directors personally, so this saga may not be over quite yet. But what’s important on a practical level is that the judgments in this case have established clearly that:

• The “separate personality” of a company is still recognised, and directors cannot be automatically held liable for the company’s debts. Grounds for personal liability must be proved.   
• An attack can come from anywhere – creditors, employees, other stakeholders, and even the company itself can hold directors liable for company losses arising from any breach of their fiduciary duties towards it.
• A creditor must show which specific section or sections of the Act the director breached. It was the importer’s inability to identify such a section in its papers that led to its case falling at the first hurdle. But as we saw above, it now has a third crack at the whip and the warning to directors remains – comply with the Act’s many requirements, or face litigation.  
• Taking another tack, a creditor could use the “abuse of separate personality” angle to sue a director. That would involve proving that the director abused the company’s separate personality sufficiently for a court to hold that it is not a separate “juristic person” for the purpose of a particular claim. In other words, the director would be regarded as the debtor for that debt.

Be prepared, and protect yourself from liability

Staying on the right side of the law isn’t complicated, but you do need to know what’s required of you. Here are some tips:

• Understand your duties: Familiarise yourself with your fiduciary duties to the company on the one hand and its and your legal obligations to other stakeholders on the other.
• Maintain proper records and books of account: Ensure financial records are always up-to-date and accurate. Ignorance of your company’s financial health is not a defence. 
• Monitor compliance and financial controls: Check that financial controls are in place and adhered to, make sure that SARS returns and payments are made on time, and generally stay on top of your financial game.
• Don’t ignore warning signs: If your company is struggling financially, ask us for advice early. Avoid delaying tough decisions.
• Open communication: Transparency with all stakeholders can save you from accusations of deceit and fraud.

If you’re ever unsure about your legal obligations or find yourself in a sticky situation, we’re here to help you understand your duties, assess risks, and protect yourself personally while you focus on growing your company and its profitability.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“I have never let my schooling interfere with my education.” (Mark Twain)

Our Constitution guarantees everyone rights to education, but that doesn’t mean parents can necessarily pick and choose which schools they send their children to. Nor does it mean that they can expect schools to continue educating their children if they don’t pay the agreed fees.

A recent High Court judgment provides a perfect example. 

Breaking the camel’s back – 4 years of arrears totalling R407k

A father’s failure to settle a bill of over R407k in unpaid school fees for his daughter’s education at “an elite private school” in Cape Town has led to him being interdicted from enrolling her there for the 2025 school year.

The school’s patience has clearly run out after years of the father’s failure to stick to a payment plan, negotiated four years ago. The Court characterised his actions as a “modus operandi of non-payment and broken undertakings”. His explanation, that affordability is the issue and that he could not pay the outstanding arrears, cut no ice with the Court. 

The proverbial “straw that broke the camel’s back”, said the Court, was the father’s “flat-out refusal to sign the most recent restructuring agreement, which had been drafted in a last-ditch effort to record in writing the terms of the most recent agreement between the [school] and the [father] so that his daughter could be enrolled at the school for her next academic year.”

The child’s best interests are always paramount

Our courts are the “upper guardians” of all minor children, and this Court was, as always, careful to consider the daughter’s best interests. 

Critically, she is not left without alternative educational opportunities – that would be a breach of her Constitutional rights as well as a violation of the strict warnings from our courts that “schools that provide basic education are under a constitutional duty not to diminish the right to basic education and at all times to act in the best interests of the child.” (Emphasis added.) 

In this instance, the school had secured “an alternative good school” for her – a government-subsidised school in the same suburb as her brother’s school. The father’s rejection of this alternative school as being “‘unsuitable’ because [it] is not predominantly white, and this does not align with his daughter’s cultural values” was summarily dismissed by the Court with the terse comment: “The less said about this argument, the better”.

The enrolment contract and the school’s obligations 

This case is an important reminder that we are bound by the agreements we make. The father, in signing his daughter’s enrolment contract, was aware that:

• The school is an independent school, getting virtually no government funding and relying on school fees and donations to fund its operations and to educate its learners.
• Failure to pay fees was a breach of contract which would inevitably lead to the daughter’s exclusion from the school.

Our courts, once again putting the interests of children first, insist that “any decision to suspend or expel a learner during school term must satisfy due process. These include adequate warning prior to suspension or exclusion, provision to make arrangements to settle fees, or the opportunity to make arrangements to enrol a learner at a new school.” (Emphasis added.)

The school in this case had clearly gone “above and beyond” in this regard, and the Court had no hesitation in issuing the interdict with costs payable by the father who must now enrol his daughter in another school – and pay this school its outstanding fees with interest.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“The scariest thing about digital abuse is how a victim can never know how far it went, how many people it reached, and how much those who saw it bought it.” (Psychology Today)

Our laws are always protective of our rights to privacy and dignity, and a recent High Court decision confirms that defamation can be a very costly business for perpetrators.

In serious cases such as those involving “revenge porn” (a term commonly used to describe “the publication of non-consensual intimate images, recordings or depictions”) offenders face criminal prosecution as well as substantial damages claims. As evidenced by a recent High Court default judgment ordering a husband and wife to pay their victim R3.55m in damages. This after they used a fake Facebook profile and other channels to disseminate explicit images and videos of her. 

The married man, his wife, and their victim

The victim (a highly qualified professional woman) was misled by a married man into thinking that he was single. A romantic relationship developed and deepened to the stage where he proposed marriage, and she accepted. We can only imagine her horror when, six months down the line, the man’s wife appeared out of the ether with the shocking disclosure that he was already married – with one child at home and another on the way. 

The victim immediately broke off the relationship, which is when her ordeal began. The husband and wife took turns to attack her, initially with reference to what the husband called “porno videos” – explicit and intimate images and videos which he had recorded without her knowledge or consent. 

The details make for grim reading, but they are important in understanding the Court’s award of substantial damages:

• Firstly, the husband refused to stop seeing his victim. He visited her workplace, ignored her attorney’s letter demanding he stop communicating with her, and threatened to send the videos to her attorney, family and friends. 
• He then created a fake Facebook profile in her name, sent her a video clip to show what he had on her, then invited her friends, family, and professional colleagues to join this fake profile. He went on to publish the videos, threatening to send them to “everyone” if she did not sleep with him. They were unfortunately seen by her friends, family, and strangers before she could get the page taken down. 
• The second perpetrator, the man’s wife, appears to have joined in at this stage, with comments on the victim’s fake Facebook profile “calculated to defame her and depict her as a dishonest, immoral, promiscuous and adulterous person who is a disgrace to her family and profession.” The wife then took her attack directly to the victim’s workplace, barging in to her offices and making highly defamatory, embarrassing, and humiliating communications to her colleagues. An email to the victim’s bosses stated that she was a homewrecker and “was not an asset to the company if she slept with married men.”
• Embarrassed, humiliated and unable to continue working, the victim was so emotionally distressed that she considered suicide. Stress-related medical problems, fear of going out or of forming personal relationships, and fears for her own and her family’s safety led to severe emotional trauma. She remains on medication for PTSD (post-traumatic stress disorder) and is also under long term treatment by a psychologist. 

The Court had no hesitation in awarding her both the damages she claimed in full – a precedent-setting R3.55m – and legal costs against the perpetrators on the punitive attorney and client scale.

But that’s not all – criminal liability could loom

The victim in this case had obtained a protection order against her tormentors. A breach of this could expose them to sentences of 5 years’ imprisonment if she decided to pursue the matter. 

The husband and wife could also face serious criminal charges under the Films and Publications Amendment Act, with penalties of up to a R300,000 fine and 4 years’ imprisonment “for knowingly distributing private sexual photographs and films in any medium, including the Internet and social media, without the prior consent of the individual”. Moreover, the Cybercrimes Act criminalises “the disclosure of data messages of intimate images where the intimate image violates or offends the sexual integrity or dignity of the person or amounts to sexual exploitation”. That Act provides for fines and up to 3 years’ imprisonment for offenders. 

None of this does anything to change the victim’s suffering – but knowing that the law is on her side might provide her some solace as she inches towards recovery. 

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“A man’s home is his castle.” (Sir Edward Coke, English common law ruling, 1604)

Of course, what we all want to hear at the end of our house-selling journey is something like this: “Congratulations! You sold for a good price, the buyer’s taken transfer and you’ve been paid the purchase price. Time to pop the bubbly🍾”.

Having your sale go this smoothly is about a lot more than just finding the right buyer at the right price. It’s also about navigating a complex legal process to ensure a smooth and timely transfer of ownership.

A critical part of this journey is choosing a conveyancer (“transferring attorney”) to handle the transfer for you. Many sellers don’t realise that this choice is theirs to make – but it is. So don’t listen to anyone who tells you otherwise!

Why do you need a conveyancer in the first place?

Conveyancers are the specially qualified attorneys who oversee all the administrative, legal and financial steps required to transfer property ownership from sellers to buyers in the Deeds Office. They ensure that everything is done correctly, that the terms of the sale agreement are complied with, and – most importantly from your point of view as seller – that you get paid.

Why does the seller get to choose?

While there’s nothing in law to stop you from agreeing otherwise, there are good reasons why you should never give up your right to choose your own attorney:

• You carry more risk, so you call the tune! As the seller, it’s your valuable asset at stake, and it’s you who is legally responsible for transferring ownership correctly and on time. So, even though it is invariably the buyer who has to pay the conveyancer’s fees and other transfer costs, it’s usually accepted that it’s you as seller who appoints the conveyancer. The idea that “he who pays the piper calls the tune” doesn’t apply here!
• You need to protect your investment: A buyer-appointed conveyancer (although obliged to act professionally towards both parties) may not be as focused on protecting your financial interests as your own attorneys will be – and that’s a risk worth avoiding.
• You should control the process: Having your own conveyancer means you have someone ensuring the sale progresses smoothly and with minimal delay. If, for example, a buyer starts hedging for more time to pay a deposit or to obtain a bond, you need someone in your corner to act quickly and firmly to protect your interests.

How should you choose and appoint the conveyancer?

When choosing a conveyancer, here are some factors to consider:

• Experience and proactivity: Experienced conveyancers can spot potential delays or issues early and take steps to resolve them. They know how to handle red tape and to meet necessary requirements promptly.
• Clear communication: You want to receive regular updates so that you always know the current status of your sale. Consistent communication can save time, reduce confusion, and give you peace of mind throughout the process.
• Attention to detail: Property transfers are legal transactions with many requirements, and even a small mistake can cause delays, disputes or losses. You want someone who will be meticulous with documentation and red-tape, ensuring compliance and accuracy.
• Strong protections against cybercrime: Email scams and cyberattacks targeting financial transactions are on the rise. Property transactions are at particular risk, so make sure your attorneys have secure systems in place to protect your information and your funds.

The formal appointment is made in the sale agreement (often initially titled “Offer to Purchase”). Pay particular attention to the clause specifying which firm of attorneys is to be appointed. As we suggest below, sign nothing until we’ve checked the document for you, together with all the other terms and conditions.

When should you bring us into the picture?

It’s never too early! Ideally call us when you first decide to sell so that we can guide you through everything from the initial steps of finding a buyer, right through to signing the sale agreement and then navigating the transfer process.

It’s particularly important that you have us review any offer to purchase you are given before you sign it. We’ll ensure that it’s legally sound and fair to you, and we’ll help you understand any unique terms or special conditions included in the sale agreement.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“The bluntest pencil is better than the sharpest mind” (Unknown)

The Festive Season is traditionally a time for giving, and it seems a pity to have to mention the hard realities of the law right now. But, as a recent High Court dispute confirms, things can go horribly wrong if the people involved have different notions on whether what’s being given is a gift, or a loan.

“Here’s R400k Ma” – But was it a loan, or a gift?

The setting for this dispute is a small caravan park, with 13 caravan sites, nine flatlets and two chalets, in the resort town of Illovo Beach on KZN’s beautiful South Coast.

The two parties are:

1. A prospective mother-in-law, part owner of the park, who lives in one of the flatlets.
2. Her daughter’s fiancé. He and the daughter were living together in the daughter’s separate flatlet at the time.

The fiancé was badly injured in a motorcycle accident, which saw him hospitalized for two weeks and incapacitated for another several months. He was paid R1.8m by the Road Accident Fund.

He used part of his R1.8m to pay his future mother-in-law (he called her “Ma”) three amounts totalling R400,100. And that’s where the dispute arose, with the Ma and son-in-law disagreeing on the nature of the payments:

• The fiancé claimed that it was a verbally-agreed loan for a long-term investment, repayable on demand.
• His prospective mother-in-law claimed that it was a verbally-agreed donation.

She duly refused to repay the money to the fiancé when he demanded it, and he sued her in the regional magistrate’s court. The onus, it was decided, was on her to prove her version that it was a gift rather than a loan.

She lost the case, largely it seems because she gave contradictory explanations for why the fiancé had given her such a gift. At first, she said it was as a token of appreciation for her not charging him to live in her daughter’s flatlet, for settling some of his medical expenses, and for the care she’d taken of him during his recuperation. But later, she said it was for payment of her legal fees arising out of a dispute with her ex-husband, and a gift, not to her, but to her daughter.

The magistrate accordingly held that she had received not a gift but a loan and ordered her to repay it. Her attempt to appeal to the High Court failed on the basis that she had filed her appeal late without giving good reasons for the delay. Critically, the Court described her prospects for success as “poor” given the above facts.

While this particular case has been decided, the main point is that the whole sorry saga of dispute and litigation could have been very easily avoided…

Gift or loan? Avoid all doubt

There’s nothing like a misunderstanding over money to drive a wedge between friends and/or family. That’s why you should avoid all possibility of confusion and dispute with a written, signed agreement. Clearly state how much is involved, and whether it’s a gift or a loan – and if it’s a loan, specify the arrangements for repayment.

Of course, the more money involved, the more detailed and formal your agreement needs to be. It goes without saying that we are here to assist if you need any advice or help.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“When the hurly-burly’s done, when the battle’s lost and won.” (One of the witches in Shakespeare’s Macbeth)

Another year draws to a close! If you’re taking a break, now’s a great time to get started on an estate plan – or to update your existing one.

Estate planning is one of the most important steps you can take to protect your assets and to ensure that your loved ones are cared for after you’re gone. It goes beyond just having a will, although that is of course an essential first step when it comes to executing your plan. An estate plan ensures that all your wishes are documented, clear, and legally binding.

Why must you prioritise an estate plan?

Having a well-thought-out estate plan is essential for several reasons:

• Protecting your loved ones: An estate plan ensures that your loved ones are provided for in the way that you choose.
• Structuring your estate: Your planning will help you decide upfront how best to structure your estate, your asset-holding entities, and so on.
• Reducing costs and delays: A proper plan can minimise the expenses and time needed to administer your estate.
• Tax efficiency: Thoughtful planning could help reduce taxes on your estate, preserving more of your wealth for your heirs.
• Avoiding disputes: By clearly stating your wishes, you can help prevent costly and bitter family disputes over your estate. Our law reports are full of them!

What you’ll want to include in your estate plan

Everyone’s situation will be unique, but a comprehensive estate plan typically encompasses:

• Your will (“Last Will and Testament”): This is your essential first step, setting out who your executor will be, who will inherit what, appointment of guardians and trustees and so on. It’s the central hub around which the rest of your plan revolves.
• Trusts: Trusts are tools for controlling how and when your assets are distributed to your heirs. They are especially useful for minor children or anyone who needs special care. They can also be used in planning for tax efficiency, but this is a specialised subject requiring advice tailored to your situation.
• Power of Attorney: This authorises someone you trust to make financial or legal decisions on your behalf if you need them to. Bear in mind that it will fall away when you die, or if you lose mental capacity.
• Living Will/Healthcare Directive: This outlines your preferences for medical treatment if you cannot communicate, helping to guide loved ones and healthcare providers.
• Beneficiary nominations: Certain assets, like living annuities and life policy proceeds, will be paid out directly to the beneficiaries you nominate. It’s also a good idea to nominate beneficiaries for all your pension products – fund trustees will not be bound by your nominations but they will at least be made aware of your wishes.

9 steps to creating your estate plan

With that list in mind, it’s time to get started! Here’s how…

1. Define your goals: Determine what you want your estate plan to accomplish, such as providing for specific loved ones, the welfare of your pets, charitable donations, the preservation of family heirlooms and so on.
2. Family dynamics: Be mindful of potential issues that could arise, such as blended families, estranged relatives, minor children, and any other loved ones with special needs or circumstances.
3. Take stock of your assets and liabilities: List all your assets, debts, financial obligations and the like. Remember that if you are married, your chosen “marital regime” (matrimonial property system) will determine which of your marriage’s assets are yours to bequeath.
4. Consider cash: Deceased estates can take a long time to finalise, so make a plan for your family to have access to funds in the interim – life policies, family trusts, and separate bank accounts are common recommendations.
5. Tax implications: Our tax laws can seriously impact your estate, so it’s crucial to understand how to minimise taxes. If you have assets in multiple jurisdictions, it gets even more complicated.
6. Choose your representatives: Appoint trusted individuals as executors, trustees, guardians, and agents for powers of attorney.
7. Draft your plan with professionals: Work with us to draft and review all the necessary documents, ensuring they correctly and clearly reflect your wishes, and that they comply with all our laws.
8. Leave an information and documents file: It will help your executor and heirs a lot if you leave them a comprehensive file of all the important information and documents they will need.
9. Review everything regularly: Life changes, so diarise regular reviews and updates of your estate plan to reflect any significant changes. These could include marriage, divorce, the birth of a child, the death of a beneficiary, changes in assets and liabilities, changes in business operations, any new laws and taxes. The list goes on…

If you need any help getting started, feel free to reach out – we’re here to help you every step of the way.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

© LawDotNews

“One of the hallmarks of an enlightened egalitarian society is the right to freedom of religion.” (Extract from judgment below)

Our courts do not tolerate unfair discrimination in the workplace, and employers need to tread particularly carefully when it comes to the concept of “automatically unfair discrimination”. Get that one wrong and you could be penalised with an order to pay your employee two years of earnings as compensation.

What is “automatically unfair discrimination”?

A dismissal is automatically unfair if based on any “arbitrary ground”, including, but not limited to, a person’s race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth (aspects relevant to this case have been highlighted).

However, “a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job” (emphasis added).

Let’s discuss these concepts with reference to a recent Labour Appeal Court (LAC) case.

“Sorry, I can’t work on the Sabbath”

Employed as a regional marketing manager by an international hospitality company, an employee signed a standard employment contract which, after specifying “normal hours of work” as being 8.30 a.m. to 5 p.m., Mondays to Fridays, with an hour for lunch, also provided for circumstances in which he could be required to work outside those hours.

Two months after starting work, the employee dropped what presumably came as something of a bombshell to his bosses. He said that as a Seventh Day Adventist, his religious beliefs precluded him from travelling or attending events on the Sabbath (i.e. from sunset on Friday until sunset on Saturday). He hadn’t made any mention of this in his job interviews, nor had he challenged the wording of his contract as to the required work hours.

Initially his line manager was able to accommodate him by covering for him on the problem days (travelling, it seems, to Kenya, Mozambique and Zambia as well as locally), but after 16 months she could not continue. He was offered an alternative position which didn’t require him to work on the Sabbath, but that came with a 45% pay cut.

The manager declined this offer, and he was dismissed after a disability enquiry. He challenged his dismissal, and the Labour Court, after finding it to have been automatically unfair, ordered his reinstatement.

His employer appealed this judgment to the LAC, which overturned that ruling and held that the dismissal was in fact fair.

Lessons to learn, points to ponder

The reasoning and the legal principles that underpinned the employer’s success in this case provide a useful blueprint for both employers and employees who might find themselves in a similar situation. Let’s address them point by point:

• Job interviews: It no doubt counted against the employee that he hadn’t mentioned the limitations on his working hours in his interviews, nor had he queried the wording of his employment contract. As a job applicant, be clear about any constraints on your work availability outside of normal hours, and query anything in your contract that might conflict with them. As an employer, make it an integral part of your interview process to check that the applicant understands your requirements as to both normal and additional work hours, and agrees to them.
• Employment contracts: The employer’s success in the LAC would not have been quite as easily won if its contract hadn’t clearly stated that the manager “will be required to work longer hours from time to time without additional compensation” (emphasis added). A “job flexibility requirement clause” also helped it when it came to the offer of an alternative position.
• Automatically unfair discrimination: There are two questions here. Was there discrimination? And if so, was it based on an arbitrary ground such as the employee’s religious beliefs? The employer in this case conceded on both aspects.
• “An inherent requirement of the job”: It was then for the employer to convince the court that the discrimination was permissible because the job requirement in question is “inherent or inescapable in the performance of the job”. Such a requirement has to be “rationally connected to the performance of the job”, “adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose” and “reasonably necessary to the accomplishment of that purpose.” The employer had no problem in proving all that. But that wasn’t the end of it…
• Accommodating the employee: As an employer, you can’t simply say “tough luck, your religious beliefs mean you can’t do the job as per its inherent requirements so off you go.” You must prove “that it is impossible [for you] to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty.” It was on this leg that the employer nearly came unstuck – while two of the judges agreed that it had passed this test, the third judge disagreed. If the decision had gone against it, the employer would have been penalised with a compensatory order of 24 months’ earnings.

Bottom line here is that you must act reasonably and in context in trying to enable an employee to continue in employment.

Our employment laws are complex and the penalties for getting them wrong are severe – so don’t hesitate to ask us for help if you’re in any doubt.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.

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“The best investment you will ever make are your employees” (Peter Drucker)

As the end of the year approaches, many employees are eagerly awaiting their 13th cheque or year-end bonus. However, not every employer is in a position to pay bonuses, and this can lead to disappointment, disputes, or even legal action if expectations aren’t managed properly.

Read on to find out whether you’re legally required to pay a bonus, and how you can avoid potential conflict.

What does the law say?

There’s a common misconception that South African law obliges employers to pay annual bonuses. This is not true. There’s no automatic legal requirement to pay a 13th cheque or other bonus unless certain conditions apply:

• Employment contracts: If the employee’s contract states that an annual bonus or 13th cheque is part of their remuneration or guaranteed rather than discretionary, you are legally obliged to pay it.
• Company policies or agreements: Bonuses may also be provided for in company policies, collective agreements, or other documents. You need to follow these agreements unless circumstances make it impossible to do so.
• Custom and practice: If your business has consistently paid bonuses in the past, this may have created a “right of expectation.” In such cases, suddenly discontinuing the bonus without prior consultation may be viewed as unfair, and employees could take legal action for unfair labour practices.

How to avoid disputes: Prepare, plan and communicate

You can avoid the common disputes over bonuses by focusing on three essential actions: preparing, planning and communicating.

1. Prepare

• Review all employment contracts and company policies. Ensure these documents are up-to-date and clearly state whether bonuses are discretionary or dependent on conditions such as company performance or employee contributions.
• Be aware of any past practices. If bonuses have been paid regularly in the past, employees will almost certainly assume this will continue, even without it being part of their contract. They could also think that bonuses are an automatic right, and not based on performance. If you’ve paid bonuses in previous years, structure your policies carefully so that paying a bonus in good years doesn’t create enforceable rights (or even unrealistic expectations) in less profitable years. Specific legal advice on this point is crucial to avoid disputes.

2. Plan

• Use cash-flow planning to assess your ability to pay bonuses so you can make informed decisions about whether or not you can afford bonuses, and to give you early warning of any possible challenges.
• When you’ve made your decision, think about how and when to tell your staff about it.

3. Communicate

• Clear and early communication is key to managing employee expectations. If you won’t be paying bonuses this year, or will be reducing the amount, let your employees know well in advance to avoid last-minute disappointment.
• If you are able to pay bonuses, take the opportunity to reinforce the link between performance and reward. Thank everyone for their hard work and contributions to the success of the business.
• Remind staff about the taxman waiting in the wings for his cut. This could come as a nasty shock, particularly if the bonus pushes an employee into a higher tax bracket.
• Open communication and consultation build trust and help maintain morale and productivity, even if the news is disappointing. Employees will appreciate honesty and clarity, especially if you’re facing financial difficulties.

How we can help

If an employee believes they are contractually or customarily entitled to a bonus and you fail to pay it, they may cry “unfair labour practice” and take the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration).

If you’re uncertain about your obligations or if you anticipate disputes, we’re here to help. We can review your employment contracts, assess past practices, and provide guidance on how to manage employee expectations legally and fairly.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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“Sexual violence is a horrific reality that continues to plague this country.” (Quoted in judgment below)

It’s often said that victims of rape and other types of sexual violence have to suffer twice – firstly at the hands of the rapist and secondly at the hands of the law.

A recent High Court ruling on the knotty question of consent could go some way towards remedying this. At the heart of the matter is the delicate balance between a victim’s right to be treated with dignity and compassion in their quest for justice, and the accused’s right to be presumed innocent until proven guilty in a fair trial.

The consent conundrum

To secure a conviction of sexual violence the State must prove – beyond reasonable doubt – the absence of consent to the accused person’s actions. Unfortunately, major injustices have resulted in the past from the fact that many perpetrators escaped conviction by simply claiming that they believed that consent had in fact been given – without having to show that their belief was in any way reasonable.

Two shocking acquittals

The Court referred to two practical examples of grave injustice rooted in the current wording of the Criminal Laws (Sexual Offences and Related Matters) Amendment Act:

1. A woman had agreed to oral sex only, but her then-boyfriend proceeded to perform full penetrative sex. He claimed that her body language gave tacit consent to penetration and that he misconstrued her request to him to stop as a request to pause momentarily. He was acquitted on the basis that his version was “reasonable and possibly true, although his explanation was improbable”. The complainant had not objectively consented, but the State had not proved beyond reasonable doubt that his version that he genuinely believed that there was at least tacit consent, was false. The court considered itself bound to acquit “unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false.”
2. In the second case, a woman was raped by a man she met through an online dating site. He had invited her to his home for a “party” at which she turned out to be the only guest. The perpetrator was acquitted on the basis that, although the victim had not objectively consented to the penetration, “she neither physically resisted nor loudly protested. The State did not exclude the possibility that the accused did not hear her say ‘no’ and did not prove beyond reasonable doubt that he was aware that she was not consenting. Put differently, the court accepted that he had subjectively believed that there was consent.”

Enter a welcome new limit to the consent defence

The courts in question had no choice but to acquit given the Act’s present wording, and as the High Court put it: “Currently … an unreasonable belief in the presence of consent is a defence. The State bears the extraordinarily high burden to prove that the accused’s claim that he [it could of course have been a “she”] was under the impression that consent had been given is not reasonably possibly true.”

It accordingly held the relevant sections of the Act to be unconstitutional and invalid and ordered that they be read such that “…it is not a valid defence for that accused person to rely on a subjective belief that the complainant was consenting to the conduct in question, unless the accused took objectively reasonable steps to ascertain that the complainant consented to [the] sexual conduct in question.” (Emphasis supplied).

How will our courts interpret this in practice?

Based on the Act’s current wording, our courts have previously held that, “where there was no express rejection of the sexual act … consent has the following requirements: (a) the consent itself must be recognised by law; (b) it must be real consent; and (c) it must be given by a person capable of consent.”

Assuming the Constitutional Court upholds the High Court’s declaration of invalidity, we can only guess how our criminal courts will ultimately interpret whatever new wording it and parliament (which has 18 months to amend the Act) finally settle on. But something like the five-point common sense definition of consent given in Amnesty International’s article “Let’s Talk About Consent” may well form the basis of judicial interpretation down the line.

The article further suggests that “Consent is not about signing a contract! It’s about communication and about making sure all sexual activities happen with mutual consent.” Which seems like a fair and practical way of looking at it.

The bottom line?

One would hope that our courts will ultimately decide that only a genuine, unequivocal, unpressured, informed, specific and un-retracted “Yes” will be enough to escape conviction.

As a final thought, remember that this new law only comes into force if and when the Constitutional Court confirms it.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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