B Lubbe & Associates Attorneys B Lubbe - Table View Based Litigation & Divorce Attorneys

“Only in our dreams are we free; the rest of the time we need wages.” (Terry Pratchett)

Retrenching employees can be an expensive business. You’ll have to pay each employee a minimum of one week’s pay for each completed year of ongoing service, and that total liability can add up alarmingly.

A recent Labour Court ruling has however set out clear guidelines for avoiding that cost by arranging alternative employment for your retrenched employees.

A lost cleaning contract and a raft of retrenchments

A contract cleaning services company, fearing it would lose a particular contract in an upcoming tender process, warned all staff employed at the factory in question that they could face retrenchment.

Sure enough, the tender went to a competitor. The company was able to absorb 130 employees into other positions and locations, but 41 had to be retrenched. Eleven of them were given severance pay, but the employer declined to pay anything to the 30 who accepted alternative employment.

The employees were having none of that, and approached the CCMA (Commission for Conciliation, Mediation and Arbitration). The CCMA awarded them both retrenchment pay and notice pay.

The employer then took the matter to the Labour Court, which set aside those awards. So, the employer is off the hook on both counts – and employers and employees should understand the Court’s reasoning for that decision.

Having your cake, and eating it

The BCEA (Basic Conditions of Employment Act) provides that employees cannot demand severance pay if they are offered alternative employment and unreasonably reject it. As the Labour Court here put it, “the raison d’être of [severance pay] is to compensate an employee who has been dismissed for operational requirements, through no fault of her own, to be paid compensation for her loss of employment. However, the legislature considered that an employee who unreasonably refuses an offer of alternative employment is not without blame. She should therefore shoulder the loss of employment without any compensation.” (Emphasis added)
Equally, “where an employee accepts alternative employment, arranged by the employer, she forfeits her right to receive severance pay.” Being paid both severance pay and a salary is a double benefit not intended by the BCEA.

Employers: Two practical steps to avoid liability

Employers should take two lessons from this ruling:

Don’t just “sit on your hands watching the world go by”! As this Court put it, employers are incentivised to ensure that their employees get another job. Which is exactly what the cleaning company did here: it “did not just sit on [its] hands and impassively watch the world go by,” it managed to find alternative employment for 30 employees. It was extremely pro-active in this regard, meeting with the new employer, giving it all the information it needed, and allowing employees paid time off to attend interviews at a venue which it arranged.
Act early and urgently. This employer avoided the claim for notice pay by giving over four weeks’ notice of termination. What’s more, it engaged in the consultation process and issued notice of retrenchment circulars at the earliest opportunity, then acted “as a matter of some urgency” to collaborate with the new employer in arranging new job offers.

Another point to consider

It’s worth noting perhaps that the Court also mentioned in passing (“obiter dicta”) that even if an employee were to find her own new employment “through her own efforts and without the aid of her retrenching employer” she “needs no soft cushion of severance pay to land on” and would have to justify any such claim.

Still, on the “better safe than sorry” principle, employers should not take chances here – rather be pro-active in arranging alternative employment as soon as you can.

A final thought for employees

Before you decide to reject any offer of alternate employment bear in mind that, as this court confirmed, it will be up to you to prove your entitlement to severance and/or notice pay – it’s not automatic!

Whether you’re an employer planning to retrench staff, or an employee facing an impending retrenchment, getting the best legal advice is key.

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.

“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.

“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.

“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.

“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.

“Don’t wait to buy land, buy land and wait.” (Will Rogers)

Summer’s a great time to look for property. With the year winding down and the holiday season upon us, many sellers who’ve been holding back are now putting their properties back onto the market, so expect to see some great new buys out there.

But that’s not the only reason…

Blue skies ahead?

The recent interest rate cut, which hopefully heralds more cuts to come, will not only make bond repayments more affordable, but it should also help stimulate our economy generally. If these positive trends hold, the resultant uptick in economic activity, with reduced pressure on consumers and higher earnings for businesses and individuals, should increase demand for property. And that, of course, would see prices move into an upward phase.

So, if you have any thoughts at all of buying a new home or investment property, now could be the perfect time to do it. If you wait too long, prices could really jump.

It is of course essential to go into the process well-prepared. We’re talking about one of your most important long-term investments, after all. So, here’s our checklist.

Your buyer’s checklist

Every buyer and every buying situation will be different, so do bear in mind that this list is just a rough guide to some of the more important factors to consider when looking for a property and/or making an offer.

1. Location is key

When it comes to real estate, location is one of the most critical factors. You can change a lot about a property, but you can’t change its location. Consider the following:

Work and schools: Is the property close enough to your place of work and your children’s schools?
Local amenities: Are there shopping centres, medical facilities and other amenities nearby?
Safety: Research the crime statistics in the area. How secure is it?
Growth and resale potential: Historically, have prices risen in line with other areas? Are there any planned developments in the area, such as new roads, malls, or housing estates?

2. Budget wisely

Be clear about your budget before you start looking at properties. Don’t only consider the price of the property but also the additional costs involved:

Transfer costs: These include transfer duty, conveyancing fees, and other legal costs associated with the purchase.
Bond registration costs: If you’re taking out a home loan, you’ll need to pay bond registration fees.
Rates and levies: Investigate the monthly rates you’ll need to pay, plus levies if the property is part of an estate or complex.
Maintenance: Be realistic about the maintenance costs you may face after purchasing the property. The 1% rule advises setting aside at least 1% of the home’s value every year for upkeep.

Put all those costs, and other items like deposits that need to be paid, into a cash flow forecast so you aren’t caught short at any stage of the process.

3. Beware online fraud!

When it comes to paying the deposit and then, later, the costs and balance of the purchase price, be very aware of the dangers of phishing and fake emails. Don’t pay a cent to anyone without personally phoning them to confirm their banking details!

4. Conduct a thorough inspection

Before making an offer, it’s crucial to inspect the property carefully. Look for any signs of wear and tear that could lead to costly repairs down the line:

Structural issues: Cracks in the walls can be a warning sign of bigger problems.
Damp and leaks: Check for signs of damp, especially in bathrooms and kitchens.
Electrical, plumbing and gas: Ensure that the wiring, gas and plumbing systems are in good working order.

Consider getting a professional inspection done to avoid surprises after the purchase. Pay close attention to the “mandatory disclosure form” that the seller must give you – it should list all known defects, boundary line disputes, building plan issues and the like. Also have a close look at all the compliance certificates that the seller is obliged to obtain – electrical, beetle, gas (if applicable), electric fence (if applicable) and water installation (Cape Town only).

5. Who’s the buyer?

Consider also who is going to be the buyer? You? Your spouse or life partner? Both of you? A trust? Another entity?

6. Buying into a complex?

If you’re buying into a complex, have you checked what rules and regulations you’ll be bound by? What levies you will pay, what special levies may be on the horizon, and whether the scheme’s finances are sound?

7. Beware nasty surprises…

Make sure there are no nasty surprises lurking in the shadows. Like servitudes or restrictions in the title deed, or undisclosed tenants or unlawful occupants on the property.

If you plan to extend or subdivide the property, or to use it for anything other than residential purposes, check both the local zoning regulations and the title deeds for restrictions.

And if that beautiful sea or mountain view is important to you, what will happen if the neighbours suddenly decide to go double or triple storey? Does the zoning allow that? Is it a realistic risk? What about other risks like a busy Airbnb or home business opening up next door?

Ask for a copy of the occupancy certificate and of building plans, and check with the local municipality that all structures are legal and built as per approved plans. Otherwise, your friendly local authority might suddenly be knocking on your door with a not-so-friendly demolition order – as happened in a recent case in the Pietermaritzburg area.

8. Understand the terms of the offer

When you’re ready to make an offer, ensure you understand the terms of the agreement. Pay close attention to:

Suspensive conditions: These are conditions that must be met before the sale goes through, such as securing a home loan. Check the wording carefully, the “bond clause” in particular is often a source of confusion and dispute.
Occupational rent: If the seller remains in the property after the sale, you may be entitled to receive occupational rent until you take possession. If, on the other hand, you take possession prior to transfer, you’ll probably have to pay occupational rent to the seller.
Deposit: Know how much deposit is required and when it must be paid.

9. Get professional help

Since buying property is one of the biggest financial decisions you’ll make, it’s essential to have experienced professionals guiding you through the process – from finding the right property to ensuring all the paperwork is in order.

The bottom line

There is a myriad of important factors at play, and you only get one shot at getting this right. So, before you agree to or sign anything, contact us. Let us help make your property purchase stress-free and rewarding!

“That which we call a rose, by any other name would smell as sweet.” (Shakespeare, in Romeo and Juliet)

Your wedding to-do list will be a long one, and getting all the “boring legal bits” in order before you marry may not seem like a huge priority. But it is. Choices you make now will affect both of you (and your families) forever.

One of those choices is what surname/s you want to adopt in your marriage. We’ll discuss your options below. And although they’re currently available only to women, there’s good news on that front – a recent High Court decision has set the stage for men to be given the same choices as women.

What’s the current position?

In terms of our Births and Deaths Registration Act, as a man you can only change your surname by application to the DHA (the Department of Home Affairs) but as a woman you can automatically:

Take your husband’s surname, or
Revert to or retain your maiden surname or any other prior surname, or
Join your surname with your husband’s as a double-barreled surname.

Those choices are of course a huge improvement on the old default position of wives automatically having to take their husband’s surnames. But there’s still inherent inequality in the law: while women have these choices as of right, a man still has to apply to the DHA for authority to change his surname. Worse still, he must give a “good and sufficient reason” for his application, and the applicable regulations say that in this context your reason “must relate to a change in the marital status of a woman”. These regulations have previously been declared invalid as “ultra vires” (made without authority) but they are very specific in excluding men from the equation.

Two couples challenge the status quo – and win

The groundbreaking High Court decision stems from the resolve of two couples to challenge that remnant of gender inequality:

J… and H… (their full names aren’t used in the judgment to respect their privacy) wanted to use J’s birth surname as it symbolized her connection to her parents who died when she was four. H pledged his unwavering support for her stance and wanted her surname to be their family name in which their children would be raised. The DHA agreed that J could retain her surname but said it was unable to allow H to adopt the same name.
Jess and Andreas (their names were included in the judgment) decided that, because Jess is an only child whose maiden surname is important to her, they would both combine their surnames into a hyphenated surname. They wanted their names to be the same and to reflect their familial unit. It was only when the time came to complete their marriage certificate that they realised only Jess could go the double-barrel route. The DHA again said they couldn’t do the same for Andreas.

In a joint application, the couples asked the High Court to declare that the relevant sections of the Act and regulations are unconstitutional. Our Constitution states, after all, that the right to equality includes full and equal enjoyment of all rights and freedoms, with the State being prohibited from unfairly discriminating directly or indirectly against anyone based on, among other things, gender or marital status. They argued that that “the Act has retained an archaic and patriarchal default position that only women are entitled, as of right, to assume a different surname.”

The Court with little ado issued the order of unconstitutionality, giving parliament two years to remedy this and ordering that in the interim men will have the same rights as women to change their surnames and to resume previous surnames on marriage, divorce or the death of a spouse. It also specifically ordered the DHA to amend these two couples’ surnames as requested.

Now it’s over to the Constitutional Court, then on to parliament

The order of unconstitutionality only comes into force as and when confirmed by the Constitutional Court so for now unfortunately your choices remain limited as above.

Whatever you settle on, before making your final decision you might want to ask us about the legal consequences. Then tell the marriage officer upfront what your choice is so that your marriage certificate, marriage register and National Population Register all reflect your married names correctly.

If you need assistance with this, or any other legal aspect of marriage, please contact us. (But please don’t ask us for help with the flowers!)

“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.

“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:

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.”
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.

“A bad neighbour is a misfortune, as much as a good one is a great blessing.” (Hesiod, 700 BCE)

It seems that every community has at least one nightmare neighbour who delights in objecting to everything, fighting with residents and management at every turn, and becoming abusive and aggressive when they don’t get their way.

What can you do to protect yourself and your family if you live in a residential complex and come under attack from such a neighbour?

Of course, first prize will always be to prevent a long and bitter feud from developing in the first place. But if you’ve tried the “let’s chat about this over a cup of coffee” approach without success, what then?

The case of the abusive neighbour and the protection order

Two residents of a complex ended up in the High Court after a magistrates’ court had issued an interim protection order restraining one resident (a man) from having any contact with another resident (a woman). This after he’d subjected her to verbal and physical abuse, threats, and harassment.

The Court’s judgment doesn’t say where these warring neighbours live. And it provides scant details of their conflict, barring that the victim ended up being physically injured. While these details would have been fascinating, the decision’s importance lies in the Court’s confirmation that our laws do provide complex dwellers with two, and in some cases three, options for protection.

Let’s investigate…

The Community Schemes Ombud Service

The CSOS (Community Schemes Ombud Service) has wide powers to arbitrate in disputes concerning complexes and other community schemes. Included in those powers, in respect of “behavioural issues”, is the power to order “that a particular behaviour or default constitutes a nuisance” and requiring “the relevant person to act, or refrain from acting, in a specified way.”
That’s great in theory but unfortunately the CSOS process is not always as quickly accessible as it should be. So, it’s good news that the High Court in this particular case allowed the victim to pursue a more immediate and direct route to justice using Option 2.

This is an important outcome, because the golden rule has always been that you are obliged to approach the Ombud Service first in any case where it has jurisdiction. If you don’t, and you decide to go straight to court, you risk being thrown out of court for jumping the gun. But there are exceptions to that rule…
The Protection from Harassment Act

The PHA (Protection from Harassment Act) gives you and your family a straightforward and affordable solution, allowing you to apply for a protection order from your local magistrates’ court to force the harasser to stop their unlawful behaviour immediately. The Act is strong in its enforcement, with violators facing arrest and fines or imprisonment of up to five years.
“Harassment” is defined widely in the PHA as covering any conduct that causes or threatens harm (mental, psychological, physical, or economic) and extending to stalking, cyber-stalking, sexual harassment and physical or electronic communication.

As this Court put it, “The mischief which the legislature intends to eliminate … is the prevalent violent behaviour in our society and in particular gender-based violence”. The Court certainly considered it relevant that the complainant in this matter is a woman, and her harasser a man.
The Domestic Violence Act

If harasser and victim are in a “domestic relationship”, there is a third option that was not mentioned in the judgment as it did not apply in this instance: the protections of the DVA (Domestic Violence Act). These protections are again quick, accessible, and effective, and the definitions of both “domestic relationship” and “domestic violence” are wide.

When are neighbours in a complex limited to Option 1? The High Court has spoken

Now for the crunch. This dispute ended up in the High Court because the magistrate reasoned that the application was prematurely before his court. He said the application should have gone first to the CSOS because the conduct complained of was a “nuisance” which gave the CSOS power to adjudicate the matter.

Not so, held the High Court on appeal. Nothing prevented the magistrate from hearing an application based on the PHA, and the victim had been free to choose either option. In reaching this decision the Court commented that “… the disputes to be dealt with under this [CSOS] Act, are those which concern the well-being of a community scheme as opposed to individuals’ dispute (sic)” – an indication perhaps that our courts will allow a direct approach to a court where “harassment” (as defined) impacts on you personally as an individual rather than solely as a complex resident.

The upshot

It’s back to the magistrates’ court for the duelling neighbours. The magistrate, after hearing both parties and any further evidence, will either make the protection order final, or discharge it.

So, which remedy should you choose?

If your neighbour’s conduct amounts to personal “harassment” or “domestic violence” as well as “nuisance”, you might well have a choice of remedies and should choose whichever is more likely to give you and your family the quickest and most effective protection. If, however, your neighbour’s conduct does not amount to either personal harassment or domestic violence, a first approach to the CSOS will probably be advised as the safer course.

Got a troublesome neighbour? We can help.