Is Uber legal?

B2

Following the death of one of Uber’s employees due to clashes between Uber drivers and taxi drivers, the Department of Labour has clarified its position in terms of labour legislation.

Recently, the Department of Labour acknowledged and applauded the ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) that Uber drivers are the employees of the company. This decision was in line with the Labour Relations (Act 66 of 1995) as amended. “With regard to the Uber drivers, like any employees, there are no exceptions. They are fully protected by the South African Labour Laws including the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)”, Commissioner Vuyo Mafata said.

Under the Labour Relations Act, any person who falls in that category is an employee and therefore fully covered in terms of labour legislation.

What happens if an Uber driver is injured?

The COID Act compensates employees who are injured or die during the cause of duty. Therefore, it means the beneficiaries of the Uber driver who died after he was allegedly attacked in Pretoria last month qualify for compensation according to the Act. However, the Fund will have to be provided with all the required documents in order to process the claim.

What about the employer, Uber?

For Uber drivers, all of this is good news. Employees will not be penalised or forfeit their benefits because of unregistered employers, instead the employers will be fined. Furthermore, employers must register their companies with the Compensation Fund so that employees are covered under the COID Act.

Reference:

  • “Department of Labour’s position in terms of Uber drivers and CCMA ruling”, Lloyd Ramutloa – the Department of Labour.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Considering adoption? Here’s what you need to know

B1

Growing your family through adoption is a bold step towards giving another child a loving, comfortable home. The legal age for being able to adopt in South Africa is 18, and it is a process conducted with caution, care and safety. Once the adoption is finalised, and acknowledged, you are regarded as the biological parents of the child.

Who can adopt a child?

Any persons over the age of 18 years can adopt a child. The rights of adoption cannot be prevented by the applicant’s financial status. Whether you are single, a widower, married or in a permanent family unit, you can apply. Being denied adoption based on your sexual orientation, race, religion and gender is unconstitutional, and these discriminatory practices are illegal.

Adoption procedure

  1. An application for the adoption of a child can be made in the Children’s Court and must be accompanied by the social worker’s report, a letter of child adoption recommendation by the provincial head of Social Development, as well as the necessary consent forms.
  2. The orientation and screening procedures follow, and include the explanation of the adoption process, interviews, various medical and psychological assessments, home visits and criminal clearances.
  3. When selected from a waiting list, the prospective adoptive parent is introduced to the child, and the social worker briefs you about the child’s profile.
  4. As the adoptive parent, you sign papers to effect the child’s change of name, and an adoption order is granted by the Children’s Court. The granted order is submitted to the National Adoption register, and the child becomes the legal child of the adoptive parent, attaining all rights as a biological child.
  5. The final step is accumulating a new birth certificate at Home Affairs indicating the surname change.

Points to remember

  • An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.
  • Written and signed consent from the biological parent/s and other parties involved can be withdrawn up to 60 days after giving legal consent, and must be verified by the Children’s Court.
  • It is recommended that children are only placed after this period has lapsed.
  • If the child is older than 10 years of age, s/he must also give consent.

References:

  • Legalwise.co.za. (2017). Adoption. [online] Available at: https://www.legalwise.co.za/help-yourself/quicklaw-guides/adoption [Accessed 15 Jun. 2017].
  • The Children’s Act Explained. (2017). [ebook] p.3. Available at: http://www.justice.gov.za/vg/children/dsd-Children_Act_ExplainedBooklet1_June2009.pdf [Accessed 12 Jun. 2017].

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Legally owning a firearm in South Africa

B2Many people in South Africa own a firearm or intend to own one in the future. However, the right to possess a firearm is not guaranteed by law, and such a right is granted under limited circumstances under provisions of the Firearms Control Act 60 of 2000. 

When is owning a firearm illegal? 

Under the Firearms Control Act (Act No. 60 of 2000), a person can be guilty of a firearm offence when they: 

  • Do not hold the necessary permits or licences for firearms in possession. 
  • Point a firearm, antique firearm or airgun, whether or not it is loaded or capable of being discharged, without good reason to do so. 
  • Neglect to lock away the firearm in a prescribed safe, and/or loses the firearm due to failing to take necessary steps in ensuring the firearm’s safekeeping. 
  • Fail to report the firearm as lost, stolen or destroyed, 24 hours after having become aware of the loss, theft or destruction of the firearm. 
  • Amend information on the competence certificate, permit or licence. 
  • Sell, give or supply a firearm or ammunition to a person who is not allowed to possess a firearm or ammunition. 

Firearms that are not prohibited under the act include:  

  • Automatic firearms (firearms that fire continuously while the trigger is pulled down, until the rounds of ammunition have run out); 
  • Any firearm that has been altered to enable more than one shot being discharged with a single depression of the trigger; or  
  • The firearm’s serial number has been changed or removed without the Registrar’s permission. 

Registering a firearm 

To register a firearm, a natural or juridical person may make an application to the Registrar of Firearms, and the natural person must possess a competency certificate issued after the successful completion of training by the Safety and Security Training Authority.  

References 

  • Dolley, C. (2017). Gunmen involved in over 1 000 murders the focus of SA’s ‘biggest ever’ firearms investigation. [online] News24. Available at: http://www.news24.com/SouthAfrica/News/gunmen-involved-in-over-1-000-murders-the-focus-of-sas-biggest-ever-firearms-investigation-20170731 [Accessed 31 Jul. 2017]. 
  • Firearms Control Act 60 of 2000. (2017). [ebook] Cape Town. Available at: http://saflii.org/za/legis/num_act/fca2000192.pdf [Accessed 31 Jul. 2017]. 
  • Loc.gov. (2017). Firearms-Control Legislation and Policy: South Africa | Law Library of Congress. [online] Available at: https://www.loc.gov/law/help/firearms-control/southafrica.php [Accessed 31 Jul.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Fearing Foreclosure: What are your rights as the homeowner?

B1

The recent junk status announcement has shaken us into a quick action of tightening our belts and letting go of luxuries to afford our day to day expenses. This financial condition inhibits the possibility of purchasing a new house, let alone affording your current home.  Have you thought about what you would do if your foreclosure wiped its shoes on your doormat? 

  • You have the option to sell  

Selling, rather than waiting for foreclosure, offers a greater possibility of you receiving greater value for your home. You may choose to sell privately or through an estate agent. It is advisable that your qualified conveyancing attorney be notified of any concerns, as well as any interests of potential buyers. During this time, look for alternative home solutions, and consider a suitable transfer date.  

Prior to the signing of the agreement of sale and the transfer of ownership, the property still belongs to you. 

  • You have time 

Before receiving a foreclosure notice, the bank allows a grace period for you to catch up on your bond instalments. It may be difficult to do so, considering your finances have already been tightrope walking over the past few months. Meeting with your bank allows the opportunity for a payment restructure to be discussed and agreed upon.  

The repossession procedure is paused during the time you are in application of or in debt review. The National Credit Act allows this opportunity. 

  • Approach your lawyer 

If, after attempting to recover payments, you receive foreclosure summons, contact your lawyer. As stated by section 26(3) of the South African Constitution, your eviction may not be finalised without an official court order. The courts consider all relevant circumstances before reaching a final eviction decision.  

You may not be arbitrarily removed from your home.  

  • You won’t be homeless 

You have the right to adequate housing, despite your previous or current economic standing. Adequacy is determined by a place to eat, shelter, a place to sleep, and a place to raise a family, and this accessibility is the responsibility of the state. Following the outcome of the sale by the bank, the home is no longer in your ownership, and the state classifies you as an unlawful occupier.  

The eviction process will then follow that of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act. 

References: 

  • National Credit Act 
  • Constitution of the Republic of South Africa [1996] 
  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [No. 19 of 1996]

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Medical negligence claims

B2

Medical negligence refers to a negative consequence of a medical treatment that could have been avoided by the medical practitioner. The Health Professions Act 56 of 1974 outlines South African medical law and it should be consulted by any person who suspects a case of medical negligence.

What is Medical Negligence?

Imagine breaking your leg and requiring surgery for it to heal correctly. After being admitted for surgery, the surgeon guarantees you that it is a routine procedure and that your leg will heal perfectly. However, after the surgery, you have no feeling in your one foot. It is possible that a nerve has been damaged. If the surgeon is the primary cause of this consequence, for example he/she was careless, then it is considered as medical negligence.

It is worth noting that a medical practitioner cannot be held responsible for unforeseen complications that arose from unavoidable treatments. If complications arose from unknown sources, even though the practitioner has performed the treatment perfectly, he/she cannot be held responsible.

Any complication that arose after a treatment could be a result of negligence. If you suffer from an unusual complication that you suspect arose from medical treatment, it is advised to get a second opinion. If you are certain that the medical practitioner was negligent, you should not wait too long before you consult a medical malpractice lawyer, because your case can weaken over time; witnesses may forget what happened and documents can go missing.

How Is It Decided Who Was Negligent?

If you believe that you have suffered because of negligence by a medical practitioner, you have the right to lay a claim in court against him/her. A Judge will hear arguments from both legal representations and then decide whether or not negligence has occurred. Usually other medical practitioners are consulted to provide their expert testimony for both cases. The Judge must evaluate all the evidence and then pass judgment on the claim.

  1. In South Africa, the Judge must decide first whether or not the medical practitioner is liable, and then to what extent the patient must be compensated.
  2. In extreme instances, a medical negligence case can turn into a criminal case if it is proved that the medical practitioner is guilty of criminal conduct.

Sometimes the medical practitioner may be completely accountable, for example he/she could have performed the medical procedure incorrectly out of ignorance. It could also be decided that the company is completely responsible, because it did not provide the adequate equipment for the procedure. A Judge may decide that both parties are guilty of negligence and then hold them equally or partially responsible.

How Does the Claiming Process Work?

If you are no longer in need of medical attention, the first person you should get in touch with is your legal adviser. Then it is necessary to inform the Health Professions Council of South Africa to lodge a complaint.

Your legal adviser will request all your medical records to review the evidence so he/she can send a letter of demand to the medical practitioner. The response to this letter will determine whether or not the matter will go to trial; the practitioner may decide to rather settle the matter out of court and to meet the demands. If the matter does go to court, you may be required to testify.

If your claim is successful, the Judge may grant you compensation in an amount that is equal to what he/she considers fair; this may include the legal costs, loss of income and any other cost you incurred.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How do I cancel a lease?

B1

What happens when a landlord or a tenant wants to cancel a lease? What rules and what legislation apply? What protection does the law provide?

If you want to end your lease early, this can be done in situations where:

  • the Consumer Protection Act or Rental Housing Act applies, or
  • there’s a clause in the contract that allows for early cancellation, or
  • if both parties agree to it.

If, on the other hand, one of the parties wants to cancel because the other is in breach of the contract, then certain notice periods come into effect – the first of which being, of course, that the aggrieved party is required to give written notice for the breach to be remedied.

For tenants

  • If your landlord is in material breach of the lease, then cancelling your lease early will not be in breach of the contract.
  • If your landlord has met all the conditions of the lease and you decide to cancel your lease early, you will be in breach of contract unless the termination of the lease has been mutually agreed upon. Speak to your landlord before making any rushed decisions, chances are, you may be able to come to a mutual agreement whereby you are able to find a replacement tenant or sublet the property for the remainder of your lease.

For landlords

  • Firstly, look to the provisions of the lease itself. Most leases contain a breach clause, which indicate a period of a number of days that are necessary to be given as notice to the tenant of a breach. If there is no breach period specified, it will be a ‘reasonable period’ in terms of the common law.
  • If you give notice of the breach, and it is not remedied in the breach notice period, this means that you can take action to sue for whatever is owed or even issue summons and attach the tenant’s goods by evoking your landlord’s hypothec, but you cannot cancel the lease and evict.

When it comes to cancelling agreements, it is always best to consult a legal expert since doing something from your own understanding and experience could lead to a court case.

References:

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Selling your property? There might be some costs you are not aware of

If you are selling property in South Africa, check what costs you have to pay, and if they’re applicable to you.

  1. Bond costs

Cancellation Costs: This is charged when you cancel your bond after selling your property. They total up to R3 000 or more.

Early Settlement Penalty: If your home was recently purchased and you are in the early years (approximately 3 years) of bond repayments, your bank is entitled to charge you an early settlement fee for consolidating your bond sooner than expected. Inquire this fee with your bank so that you are set for payment.

Notice Period Penalty: With so many other things to be concerned about, you are likely unaware of the need to notify the bank of your intent to sell. While this may vary with different banks, most of them require a written notice 90 days in advance before you start consolidating your bond. Failing to supply this notice on time will entitle your bank to charge you with penalty interest.

The transfer process: This process, from the date you accept a desirable offer to purchase to the registration of the home to the buyer’s name, can take anywhere between 2.5 and 3 months. In the case where you could need money from your bond to pay off any other financial obligations, then you should withdraw it before giving your notice of cancellation.

  1. Agent’s commission and VAT

Estate agents have insight on property market trends, which is beneficial to ensure you receive what you deserve for your home. They do, however, charge commission on the sale of any property, and it is usually expressed as a percentage of the purchase price, however, it excludes VAT. This is likely the biggest cost of selling, so selling privately is an option available to you.

  1. Compliance certificates

Compliance certificates ensure that any installations that could be deemed dangerous in your home are done by a professional and done correctly. As a seller, it is your responsibility to ensure they are up to date before supplying them to the buyer. These certificates cost at least R500 each, but if there are faults discovered upon inspection, then you also have to pay for the necessary work to be done before the certificate can be issued.

Electrical: The Electrical Certificate of Compliance, also referred to as an ECOC, is valid for two years from the date of issue.

Electrical Fence System Compliance Certificate: Different from an ECOC, the Electrical Fence System Compliance Certificate is required for a home with electrical fencing as a security measure.

Beetle (entomological): While not compulsory, if the home you are selling is in the Western Cape or KwaZulu-Natal regions, you will generally need to provide the purchaser with certification. This certificate indicates that the property is free from beetle infestations.

Gas: To confirm that the gas lines in the home are safe, homeowners will be required to obtain a certificate of conformity, which indicates that the installation has been done by a qualified technician.

Plumbing: Currently a requirement for Cape Town, this certificate confirms that the plumbing on the property is sound. This certificate does not confirm that the property is free from rising damp or that there are no blocked drains.

  • If the inspection results in work needing to be done to achieve compliance, then the contractor will give a quote for it.
  1. Rates, taxes and levies clearance certificate

Rates and taxes: Attorneys will require a rates and taxes clearance certificate from the local council, and the seller will need to put money upfront to get this certificate. To provide the clearance certificate, the council can ask between 2 and 6 months of future-dated payments.

  • If the home happens to be registered within a shorter time frame, the council will pay back the additional money which the seller has paid.

Levies: In the instance where the seller is in an estate or sectional title property, the homeowners’ association or body corporate may request that the seller pays for their levies a few months in advance to ensure such costs are covered until transfer takes place.

  1. Property Capital Gains Tax

This tax is not charged on all property, but if charged, it is taxable on the resale of property. This cost is the responsibility of the seller.

  1. Moving costs

This is an inevitable part of moving from the sold property, and it is often not considered until the last minute. What must be considered here is how the move from point A to B will be made and this can also vary depending on how many trips need to be made. The costs to consider are the petrol costs and the possible cost of professional movers.

  • Getting insurance for items being moved should be factored in.

Paying to Sell Infograph

Please contact us should you have any specific questions.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Sectional titles: What is the role of the body corporate?

B1When it comes to sectional title schemes, there is still widespread misunderstanding of even the basics, starting with the body corporate and how it is established, as well as what its functions and powers are. This misunderstanding often gives rise to many problems and disputes in sectional title schemes which could quite easily have been avoided.

What is a sectional title?

A Sectional Title Development Scheme, usually referred to as a “scheme”, provides for separate ownership of a property, by individuals. These schemes fall under the control of the Sectional Titles Act, which came into effect on 1 June 1988.

When you buy a property that’s part of a scheme, you own the inside of the property i.e. the space contained by the inner walls, ceilings & floors of the unit. You are entitled to paint or decorate or undertake alterations as desired, providing such alterations do not infringe on municipal by-laws.

What is the body corporate?

The Body Corporate is the collective name given to all the owners of units in a scheme. Units usually refers to the townhouses or flats in a development. The body corporate comes into existence as soon as the developer of the scheme transfers a unit to a new owner. This means that all registered owners of units in a scheme are members of the Body Corporate.

  1. The Body Corporate controls and runs the Scheme.
  2. Day-to-day administration of the Scheme is vested in trustees who are appointed by the Body Corporate.
  3. Major decisions regarding the Scheme are made by the Body Corporate, usually at the annual general meeting (AGM), or at a special general meeting (SGM). At these meetings, matters, which affect the Scheme, are discussed, budgets are approved, rules can be changed and trustees are appointed. Each member of a Body Corporate is entitled to vote at these meetings, providing that the member is not in arrears with levy payments or in serious breach of the rules.

The Body Corporate exists to manage and administer the land and buildings in the scheme. This means, that the Body Corporate is required to enforce the legislation and rules in the Sectional Titles Act, the Management Rules and the Conduct Rules of the scheme. Amongst their other duties, the Trustees manage the Body Corporate’s funds, enforce the rules and resolve conflict to the best of their ability.

References:

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Am I still liable for my spouse’s debt after divorce?

B2A husband and wife buy a house together. Their marriage takes a tumble, along with their ­finances, and they have to sell their home and are left with an outstanding mortgage bond. They subsequently got divorced. The couple is concerned about what will happen to the debts and who will be ­responsible for paying them.

Who pays what after divorce?

If the couple was married in ­community of property, the debt on the property is a joint debt. They will be jointly and severally liable. This means that each partner is not just liable for half the debt now that they are divorced, in fact the bank can seek the full amount from either of them. The one spouse who is held liable by the bank would then have a claim of 50% of the debt against the other, but it would be his or her responsibility to collect that debt (not the bank’s). Alternatively, the bank may agree to accept 50% from one person and release them from the ­liability, but it does not have to.

Sometimes, the divorce settlement makes a special mention of the mortgage. But if there is no clause in the divorce, the joint liability principle applies. After a divorce, the husband and wife should present their bank with a copy of the divorce settlement. This will remove any uncertainty about ownership and liability for bond payments.

Getting divorced while under debt review

If you get divorced while you are under debt review and you have the debt review court order in place, then this will need to be rescinded and for new debt counselling applications to be started, as in order to follow on with the debt counselling process you will need to reapply, but will now need to be seen as two single applications. A new budget and new proposals will also have to be drawn up.

References:

  • “Debt And Divorce”. News24. N.p., 2017. Web. 12 June 2017.
  • “Debt Review After A Divorce Settlement – Debt Review”. Debtbusters. N.p., 2017. Web. 13 June 2017.

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Spanking your child is illegal in South Africa

B2The South Gauteng High Court ruled that the common law defence of reasonable chastisement is not in line with the Constitution and no longer applies in our law. This means disciplining your child in the form of a spanking is no longer considered legal within South Africa.

How did it come to this?

It has always been considered a crime of assault to hit a child, however, if a parent was charged, they would be able to raise a special defence which said that if the chastisement, or discipline, was reasonable they would not be found guilty.

The special defence of chastisement has been removed by the Court, which was to bring the common law in line with the Constitution. This followed an appeal by a father who had been found guilty of assault because he beat his 13-year-old son. The way in which he beat his son was deemed to exceed the bounds of reasonable chastisement.

The Court said that it wanted to guide and support parents in finding more positive and effective ways of disciplining children. The Minister of Social Development, Bathabilie Dlamini, also agreed that the defence of reasonable chastisement is unconstitutional. The Court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

Reference:

  • YG v S (A263/2016) [2017] ZAGPJHC 290 (19 October 2017)
  • “It’s now illegal to spank your child in SA”. https://www.enca.com/south-africa/it-is-now-illegal-to-spank-your-child-in-sa

This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).