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29 Apr 2022

Property Owners: Your Rates Could Quadruple for Unauthorised Land Use

One of your unavoidable ongoing expenses as a landowner is the monthly rates bill levied by your local municipality. As high as you think your rates may be now, they could get a lot worse if you use your property for something illegal or unauthorised. That will open the door to your municipality to impose a “penalty rate” on you.

We illustrate with reference to a case in which Johannesburg property owners faced a quadrupled rates bill after they let out two rooms in their house to students without municipal authority. The Supreme Court of Appeal upheld that increase, and whilst every municipality will have its own rates and land use policies, the principle is there – unlawful land use is likely to get expensive!

“The said penalty … was imposed due to the fact that the property was being used in contradiction to its zoning” (extract from judgment below)

Municipalities all have the right (and the duty) to regulate land use in their areas, and amongst other sanctions, properties that are used unlawfully or without authorisation can be subjected to rates and charges on a penalty tariff.
These penalties can be steep, and the Supreme Court of Appeal (SCA) has now held that they can be imposed without the municipality first having to change the property’s category on its valuation roll to “illegal or unauthorised” use. All it has to prove is that it acted in terms of a lawful rates policy.

The house whose rates bill quadrupled

  • A house valued (on the municipality’s valuation roll) at R1,650,000 had its monthly rates bill quadrupled from R898-01 to R3,592-05.
  • The municipality took this step after notifying the owners of their “wrongful and unlawful use of the property as a student commune, in
    contravention of the town planning scheme and zoning thereof without the necessary authorisation.” Authorisation was necessary, said the municipality, because the commune was a “commercial concern”.
  • This after the owners had let out two of their five bedrooms to “students or young professionals” and had continued to do so despite two years’ worth of notices from the municipality to terminate the unlawful use, and despite a High Court interdict against the continued contravention.
  • The legal challenge mounted by the property owners against the penalties was based on a series of legal arguments, and the Court’s analysis thereof (on appeal from the High Court) will be of great interest to property professionals.
  • For property owners however, the practical punchline is that the SCA upheld the penalty charges, and the owners must pay them.

If your neighbour breaches land use laws…

That punchline is also important for neighbours, because in practice unlawful land usage of this nature will often only come to a municipality’s notice when a concerned neighbour blows the whistle.

So, if you think your neighbour is about to open up an unauthorised office, commercial or other non-permitted operation next door, and if you can’t settle the matter peaceably over a cup of neighbourly coffee, call in professional help immediately. Just the threat of a quadrupled rates bill could be enough to make the problem go away.

Different strokes for different municipalities

Property owner or neighbour, find out what your local authority’s land use and rates policies are. This particular case related to the City of Johannesburg Metropolitan Municipality, and your local municipality will have its own land use bye-laws, which could well be less or more restrictive than Joburg’s.

Check the zoning before you buy property

Perhaps the property owners in this case planned all along to let out rooms, and perhaps that extra income is what put this particular house within their financial reach. If so, the mistake they made was in not checking the local zoning upfront.

Knowing the zoning and building restrictions in your chosen area is also vital if you want to avoid unpleasant surprises, like a new neighbour opening up a guesthouse or building a triple story which cuts off your sea views. Ask your lawyer to check for you before you offer.

30 Mar 2022

Don’t Accidentally Disqualify Your Chosen Heirs from Inheriting!

Your will lies at the heart of ensuring that your loved ones will be able to cope financially once you are gone, so it is of course vital that it be both valid and an accurate reflection of your wishes.

A little-known danger in this regard is that you might inadvertently disqualify one or more of your intended heirs from inheriting. We discuss this danger, and the law and practicalities involved, in the context of a High Court fight between a deceased testator’s children from two different marriages.

The outcome provides yet another warning to have your will prepared for you by a professional.

“Death is not the end. There remains the litigation over the estate.” (Ambrose Bierce)

Your will (“Last Will and Testament”) will always be the keystone of your estate planning, and a recent High Court decision sounds yet another warning to beware the “do your own will” concept. By not having his will drawn by a professional, a father inadvertently caused one of his children to be disqualified from inheriting her intended share, whilst her husband was disqualified from being appointed as executor.

Who is disqualified from inheriting?

Our law, in the form of the Wills Act, provides that no one (or their spouse) can receive “any benefit” under a will if –

  • They signed it as a witness (unless it was also witnessed by two other competent people not receiving any benefit), or
  • They signed it for the testator (even though in their presence and at their direction), or
  • They wrote out the will or any part of it in their own handwriting.

“Any benefit” in this context means not just inheritance as an heir, but also appointment as executor, trustee or guardian.

A court can only allow such a person to inherit “if the court is satisfied that that person or his spouse did not defraud or unduly influence the testator in the execution of the will”. Importantly (as we shall see below), it is up to the heir to prove the absence of any fraud and undue influence.

As the Court put it: “This disqualification exists in order to prevent falsity and fraud, and to prevent ‘the exertion of undue influence over people in bad health or in feeble state of mind’. This is because the fact that someone who stands to benefit from the death of a testator in terms of a will, and who is involved in the drawing of the very will in which that benefit is declared, ineluctably invites speculation that he or she may have improperly influenced the testator in the framing of his final testament, more particularly so where the will is executed at a moment of crisis in the testator’s life.”

If the beneficiary would have inherited anyway under intestacy (i.e. if the deceased had not left any valid will at all) they may still inherit but no more than the value of their intestate share.

The facts of the family fight

  • In poor health and realising he needed a will, the testator had asked a friend to help him draw one. The friend produced a typed will, in terms of which each of the testator’s three children (from two different marriages) received one third of his estate. In addition a son-in-law was appointed as executor.
  • The will was, said the Court, “slightly unusual” in that it included a narrative on the father’s difficulties with his third wife, but the real problem (as it turned out) came from the fact that annexed to it was a four-page typed schedule of 69 assets with spaces against each of them for insertion of the name of the child to receive that asset. Critically, those names were filled in by hand by one of the daughters – on, she said, her father’s instructions.
  • The will and schedule were properly signed and witnessed, and the father died five days later.
  • As is regrettably all too common when a deceased leaves behind children from more than one marriage, a fight developed between them, with a claim that the schedule of assets did not reflect the father’s wishes through either fraud or undue influence.
  • The end result (much bitter dispute over facts later) the Court held that the daughter who had completed the names on the schedule by hand was disqualified from inheriting any more than her share on intestacy, and her husband was disqualified from being appointed as executor.

The bottom line

All that dispute, uncertainty and legal cost could have been avoided had the father called in a competent professional to draw his will for him (preferably long before his illness struck). Don’t make the same mistake!

30 Mar 2022

Property Owner and Body Corporate Liable After Child’s Electrocution?

Property owners (separate title holders as well as those in community schemes), bodies corporate and building contractors should all understand their risk of being sued if a dangerous situation exists or develops on a property or in a complex.

We discuss these risks, and how to address them, with reference to a High Court claim for R3m brought by a mother on behalf of her young son who was electrocuted when he tried to turn on a tap.

The tap had been electrified through the negligence of several contractors, and this dangerous situation had been compounded by the negligence of others. The court’s assessment of which of the various parties involved must pay damages, and why, provides valuable lessons for all role-players.

A recent High Court decision saw both a sectional title unit owner and his cupboard contractor held liable for damages suffered by an 11-year-old boy electrocuted by a communal tap. The complex’s body corporate and an electrician were also sued but escaped liability.
The reasons given by the Court for these contrasting outcomes provide valuable lessons for property owners, contractors, and bodies corporate.

Electrocuted when he turned on a tap

  • You don’t expect to be electrocuted when you turn on a tap, but that is what happened to an unfortunate boy, aged 11, who had offered to wash his mother’s car in a residential complex.
  • When he touched a communal tap to fill up a bucket of water he was electrocuted and unable to remove his hand for 1 to 2 minutes. Fortunately the tenant of the unit which was the source of the electric current arrived home in time to switch off the electricity so that the boy could be rescued.
  • He was rushed to hospital with serious injuries and his mother sued all the role-players for more than R3m in damages on his behalf.
  • To simplify as much as possible some very complicated facts, a cupboard contractor had been brought in to do work in the unit by the owner’s agent/employee at the request of a tenant. The contractor employed two workers who caused the initial problem by drilling through a wall and damaging the electrical insulation.
  • The owner’s agent then contracted an electrician to fix the problem, but he only compounded the danger by bungling the repair job and leaving the plumbing live.
  • The tenant, shocked (electrically, presumably also figuratively) when she turned on taps in the unit, switched off the electricity and reported the danger to the agent. Unfortunately the two workers, in her absence the next day, switched it on again – thus creating anew the dangerous situation that later that day led to the boy’s electrocution.

Let’s have a look at some of the legal principles that led the Court to its decision in regard to each of the role-players –

Your agent or employee doesn’t tell you of a dangerous situation – are you liable?

There was a dispute over whether the owner’s “agent” was legally an agent or an employee, and whether or not he had told the owner of the dangerous situation. But it made no difference, held the Court – the “agent’s” knowledge of the dangerous situation in the unit was attributed to the owner because (1) he had acquired that knowledge in the course of his employment, and (2) in the circumstances he had a duty to report it to the owner.

Make sure your agents and employees are trustworthy enough to tell you about any dangerous situations in your property!

Are you liable for your contractor’s negligence?

Clearly the workers employed by the contractor had caused the dangerous situation, firstly by damaging the electrical insulation and secondly by turning the electricity back on knowing of the danger. The contractor was accordingly liable, but what about the property owner who had employed him?

Our law is that you are not automatically liable for your contractor’s negligence, but you must “exercise that degree of care that the circumstances demand”. On the basis that “It is the principal, who selects his agent and represents him as a trustworthy person, and not the other party to a contract who has no say in the selection, who bears the risk……” (emphasis supplied), the Court found both the contractor and the unit’s owner liable for “the negligent omissions and/or acts on the part of their agents/employees.”

In any event both the “agent’s” inaction and the actions of the two workers “jointly contributed to the cause of the electrocution of the minor. Had either acted as they ought to have, the minor would not have been electrocuted.”

You are at risk for the conduct of any contractors and employees on your property, so again make sure they are trustworthy!

When is a body corporate liable?

A body corporate is as much at risk of being sued as any individual owner in a case such as this – it was presumably sued in this matter on the basis that the tap in question was a “communal” one and therefore under its control.

Its security officers had become aware of the situation when they queried the presence of the workers in the complex. However the claim against it failed as the evidence was that the child’s electrocution “was unforeseeable as far as it [the body corporate] was concerned. It had no duty to do anything while it was unaware of the danger posed. There had never been any problem with the electrical installation and it follows that what occurred was not reasonably foreseeable to it. Immediately the dangerous situation was brought to its attention it acted immediately.”

As a body corporate, take all reasonable steps to prevent dangerous situations arising in the complex in the first place, and take immediate action to rectify any that come to your notice!

What about the negligent electrician and the “chain of causation”?

Our law is that you are only liable if there is a “chain of causation” between your negligence and the damage resulting. So you can sometimes escape liability if there is a new “intervening cause” that interrupts that chain of causation.

In this case, the electrician’s failure to do the repairs properly was held to have been a “direct cause” of the incident. But his bacon was saved by the fact that the two workers, in switching the electricity back on, knew they were creating a dangerous situation anew. This made it sufficiently “unusual”, “unexpected” and not “reasonably foreseeable” for there to be – from the electrician’s point of view – a new “intervening cause” which interrupted the “chain of causation” between his negligence and the electrocution. The claim against him failed accordingly.

Any break in the “chain of causation” may come to your rescue if you are sued. But don’t count on it!

09 Mar 2022

DIGITAL SIGNATURES – AN UPDATE ON WHETHER WE CAN RELY ON ELECTRONIC SIGNATURES IN THE SALE OF IMMOVABLE PROPERTY

May we use a stylus pen to sign an OTP, if we apply the signature on an electronic tablet?

The Electronic Communications and Transactions Act 25 of 2002 (the ECTA) defines an electronic signature in section 1 thereof as ‘data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.’ Section 13 goes further to state that “Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used. (Advanced signatures are then defined with reference to Section 37 which does not help this present discussion at all). (2) Subject to subsection (I), an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form. The purpose of ECTA is to enable solutions to scenarios where the validity or authenticity of a signature can be achieved, without necessitating in person, the actual signature of a document.

However, ECTA expressly states that it does not apply to sales of immovable property under the Alienation of Land Act of 1981 (ALA).

The ALA again, requires all sale agreements of land to be signed.

The question that now arises regularly is whether a signature with a stylus pen, on an electronic tablet, is acceptable. Or does this amount to an electronic signature? With reference to the definition of an e-signature, you will have noted that we underlined some words in the definition above – data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.

If you go onto ADOBE for example, type in your name and the computer then asks you to choose one of several pretty fonts to apply a signature which the computer generates, one cannot deny, that this is a “mark” you make using data, which is “intended” to serve as a signature. But where you apply your actual signature to a document using a tablet – this remains your actual signature, doesn’t it?

Several High Court and Appeal Court decisions up until now, have consistently held that a signature for the sale of immovable property, means a “wet ink” signature. This means your hand has to actually hold a pen or pencil to make a signature. Even a thumb print or an “X” can serve as a signature, but can one argue that the application of a “stylus” signature on an electronic tablet, which is then transmitted to a document, is tantamount to a “wet ink” signature?

A signature is nothing more than your “chosen mark”. A tablet signature is after all your actual signature. You just choose to attach it, using electronic means, instead of using actual “wet ink”. There was a decision in the Eastern Cape recently which held that it was acceptable for a signatory to use a mobile phone app, to apply a photo of his actual signature, onto a sale agreement for land. The court was satisfied that if that is how he chose to apply his actual signature, that he was free to do so, given that it was still his actual signature – and not a computer generated, image, “intended to be” his signature. The door therefore appears to have been opened to argue this point, but, because this was a single judge judgment (which was not appealed against to our knowledge) it is not entirely authoritative.

To answer the question – tread lightly for now and stick to wet ink as far as possible until we have more case law on this topic!

Kind Regards

Miltons Matsemela Inc

25 Jan 2022

NEW EAAB PRACTICE NOTE

Further to our post about qualification deadlines for agents that must be in place by 30 June 2022, we have now also obtained clarity on what it actually means for agents who become DE-REGISTERED, and who must then re-register again as interns – Regardless of their prior status.

What does this mean for full status agents or principals who fall in this category?

If you’re a full status agent who is re-registered as an intern:

You will need to do another logbook, your NQF4 qualification will always remain in place [it’s a national certificate] but you will need to redo the PDE4. You will also have to work under the active supervision of a fully qualified agent/principal.

If you are a principal who is re-registered as an intern:

You will be required to compile a logbook, you will need to do the NQF4 qualification and the NQF5 qualification [unless you have already achieved those or were granted exemption based on your post matric degrees – but NB – the exemption based on experience will fall away!]. You will need to write the PDE4 and the PDE5 again. You cannot be a principal again until you have achieved this. You will have to work under the active supervision of a full status agent/another principal.

In short, your entire business will be at risk because none of your agents will be able to trade. Dire consequences are on the horizon so please ensure your ducks are in a row!

Kindest regards
Miltons Matsemela Inc.

25 Jan 2022

REGULATING THE POSITION OF ESTATE AGENTS

We have noticed some confusion between estate agents surrounding a circular that was sent out by the EAAB, regarding the risk of being disqualified or deregistered if certain training requirements are not met by 30 June 2022. Herewith a summary of the circular which we hope will clarify the circular:

INTERN ESTATE AGENTS:

Persons who have been registered as Intern estate agents for a period exceeding twenty-four months, calculated as from the date of the first issue to such persons of a valid intern Fidelity Fund Certificate, are granted until 30 June 2022 within which to submit a completed Intern logbook to the EAAB in the format required by the EAAB for assessment if that Intern was first issued with an intern fidelity fund certificate during, or subsequent to, the 2013 calendar year. (Alternatively, if you were issued with an FFC prior to the 2013 calendar year, you can submit a letter from a Principal of the estate agency where you served your internship, on a letterhead of the agency, confirming that the intern estate agent successfully completed the twelve-month internship period). You also have until 30 June 2022 to obtain an NQF4 real estate qualification and you must have passed the PDE 4 exam by that date.

Intern estate agents who have had an NQF4 for more than 2 years already, you must now also pass the PDE 4 by 30 June 2022 as well.

FULL STATUS NON-PRINCIPAL ESTATE AGENTS WHO HAVE NOT BEEN CERTIFICATED AGAINST THE NQF LEVEL 4 REAL ESTATE QUALIFICATION AND/OR WHO HAVE NOT PASSED THE PDE 4

Registered Full Status Non-Principal estate agents holding a valid Fidelity Fund certificate issued by the EAAB who have not been certificated against the NQF Level 4 real estate qualification and/or have not passed the PDE 4 are granted until 30 June 2022 within which to be certificated against the NQF Level 4 real estate qualification and/or to pass the PDE.

REGISTERED FULL STATUS PRINCIPAL ESTATE AGENTS WHO HAVE NOT BEEN CERTIFICATED AGAINST THE NQF LEVEL 5 REAL ESTATE QUALIFICATION AND/OR WHO HAVE NOT PASSED THE PDE 5

Registered Full Status Principal estate agents holding a valid Fidelity Fund Certificate issued by the EAAB who have not been certificated against the NQF Level 5 real estate qualification and/or have not passed the PDE 5 are granted until 30 June 2022 within which to be certificated against the NQF Level 5 real estate qualification and/or to pass the PDE 5.

If you don’t comply with these deadlines, by 30 June 2022, you will be disqualified as an estate agent. WHAT DOES THIS MEAN?

The disqualified persons will be blocked and unable to renew their Fidelity Fund Certificates. An administrative penalty of R1000.00 will be imposed on such disqualified persons. The administrative penalty must be paid by the disqualified persons concerned before any further Fidelity Fund Certificates may be issued to them and of course they will have to submit proof that they have met whatever requirements needed to be met. Disqualified persons can, apply to the board under section 27 of the Act, for the issue of a Fidelity Fund Certificate for the 2022 calendar year but will have to prove that it will be in the “interest of justice.” No guidelines are provided to qualify what this means. A “substantive” application may be made by a disqualified person within a period of sixty days after the person concerned is notified by the EAAB, in writing, of the disqualification. A substantive application means an affidavit, together with all supporting documents necessary or required to enable the application to be duly considered, in which the applicant provides sound and valid reasons as to why the issue of a Fidelity Fund Certificate to the applicant will be in the interest of justice. After receipt, consideration and approval, of a compliant application the applicant estate agent may be unblocked and granted a maximum further period of six months, calculated as from the date of the unblocking of the applicant estate agent, within which to comply with any outstanding educational requirements in terms of the Education Regulations. No further extensions of time, shall be granted to the applicant estate agent. If you do not make such an application within 60 days you will become deregistered as an estate agent.

NB!!! Estate agents who have been deregistered by the EAAB may reregister but only in the capacity of an Intern estate agent and will then have to comply with all the requirements pertaining to an Intern estate agent.

The above became effective on 1 July 2021.

We recommend that all agents who are not compliant, contact a training centre (such as Isikolo) to make enquiries should anything be unclear, and/or to register for the required training and exams without any further delay. Best of luck to all of you who fall within either of these categories. We can only hope that the EAAB’s records will be accurate as at 30 June 2022.

Kindest regards
Miltons Matsemela Inc.

21 Jan 2022

REGULATING THE POSITION OF ESTATE AGENTS

We have noticed some confusion between estate agents surrounding a circular that was sent out by the EAAB, regarding the risk of being disqualified or deregistered if certain training requirements are not met by 30 June 2022. Herewith a summary of the circular which we hope will clarify the circular:

1. INTERN ESTATE AGENTS:

Persons who have been registered as Intern estate agents for a period exceeding twenty-four months, calculated as from the date of the first issue to such persons of a valid intern Fidelity Fund Certificate, are granted until 30 June 2022 within which to submit a completed Intern logbook to the EAAB in the format required by the EAAB for assessment if that Intern was first issued with an intern fidelity fund certificate during, or subsequent to, the 2013 calendar year. (Alternatively, if you were issued with an FFC prior to the 2013 calendar year, you can submit a letter from a Principal of the estate agency where you served your internship, on a letterhead of the agency, confirming that the intern estate agent successfully completed the twelve-month internship period). You also have until 30 June 2022 to obtain an NQF4 real estate qualification and you must have passed the PDE 4 exam by that date.

Intern estate agents who have had an NQF4 for more than 2 years already, you must now also pass the PDE 4 by 30 June 2022 as well.

2. FULL STATUS NON-PRINCIPAL ESTATE AGENTS WHO HAVE NOT BEEN CERTIFICATED AGAINST THE NQF LEVEL 4 REAL ESTATE QUALIFICATION AND/OR WHO HAVE NOT PASSED THE PDE 4

Registered Full Status Non-Principal estate agents holding a valid Fidelity Fund certificate issued by the EAAB who have not been certificated against the NQF Level 4 real estate qualification and/or have not passed the PDE 4 are granted until 30 June 2022 within which to be certificated against the NQF Level 4 real estate qualification and/or to pass the PDE.

3. REGISTERED FULL STATUS PRINCIPAL ESTATE AGENTS WHO HAVE NOT BEEN CERTIFICATED AGAINST THE NQF LEVEL 5 REAL ESTATE QUALIFICATION AND/OR WHO HAVE NOT PASSED THE PDE 5

Registered Full Status Principal estate agents holding a valid Fidelity Fund Certificate issued by the EAAB who have not been certificated against the NQF Level 5 real estate qualification and/or have not passed the PDE 5 are granted until 30 June 2022 within which to be certificated against the NQF Level 5 real estate qualification and/or to pass the PDE 5.

If you don’t comply with these deadlines, by 30 June 2022, you will be disqualified as an estate agent. WHAT DOES THIS MEAN?

The disqualified persons will be blocked and unable to renew their Fidelity Fund Certificates. An administrative penalty of R1000.00 will be imposed on such disqualified persons. The administrative penalty must be paid by the disqualified persons concerned before any further Fidelity Fund Certificates may be issued to them and of course they will have to submit proof that they have met whatever requirements needed to be met. Disqualified persons can, apply to the board under section 27 of the Act, for the issue of a Fidelity Fund Certificate for the 2022 calendar year but will have to prove that it will be in the “interest of justice.” No guidelines are provided to qualify what this means. A “substantive” application may be made by a disqualified person within a period of sixty days after the person concerned is notified by the EAAB, in writing, of the disqualification. A substantive application means an affidavit, together with all supporting documents necessary or required to enable the application to be duly considered, in which the applicant provides sound and valid reasons as to why the issue of a Fidelity Fund Certificate to the applicant will be in the interest of justice. After receipt, consideration and approval, of a compliant application the applicant estate agent may be unblocked and granted a maximum further period of six months, calculated as from the date of the unblocking of the applicant estate agent, within which to comply with any outstanding educational requirements in terms of the Education Regulations. No further extensions of time, shall be granted to the applicant estate agent. If you do not make such an application within 60 days you will become deregistered as an estate agent.

NB!!! Estate agents who have been deregistered by the EAAB may reregister but only in the capacity of an Intern estate agent and will then have to comply with all the requirements pertaining to an Intern estate agent.

The above became effective on 1 July 2021.

We recommend that all agents who are not compliant, contact a training centre (such as Isikolo) to make enquiries should anything be unclear, and/or to register for the required training and exams without any further delay. Best of luck to all of you who fall within either of these categories. We can only hope that the EAAB’s records will be accurate as at 30 June 2022.

17 Jan 2022

NEWFLASH – Property Practitioners Act to commence on 1 February 2022

We have just learnt that the Property Practitioners Act will commence on 1 February 2022.

We have yet to see the final draft of the regulations, and will advise as soon as we have had sight of them.

Refresher training courses will be offered by Webinar and in our training venues, once we have had sight of the final Regulations.

14 Jan 2022

A VICTIM OF SEXUAL HARASSMENT MUST REPORT IT “IMMEDIATELY”

Would-be workplace sex pests should remember that our courts are unwavering in their support for victims of sexual harassment. When it happens in the workplace, victims can seek redress not only from the perpetrators themselves, but also from their employer in appropriate cases.

Victims must however report any incident to their employer, without delay and using the correct procedures.

Failure to do so can be fatal to the victim’s claim, as we shall see in the context of a recent Labour Court case where a female employee, who had been subjected to harassment by two of her senior colleagues, delayed (for two and three years respectively) before reporting them to her employer.

“…sexual harassment is a heinous and horrendous conduct since it undermines the dignity of women and the values enshrined in our Constitution.” (Extract from judgment below)

Employers have a strong duty to provide a safe workplace for their employees, and to protect them from harm – including sexual harassment. An employer who fails in this faces claims for damages and compensation, but as a recent Labour Court judgment shows, the victim must first follow procedure correctly, and without delay.

Delayed reporting kills a claim

A female employee claimed “a just and equitable compensation” from her employer after she was sexually harassed by two male superiors.

Her claim failed, the Court finding that her delay in reporting the incidents to her employer (two years in one case and three in the other) were……

The correct procedure, and the required timing

The employee’s claim was based on an allegation that her employer had contravened section 60 of the Employment Equity Act (EEA), which deems an employer guilty of a contravention and liable for the offending employee’s conduct unless it takes “the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act” and “is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.”

  1. The Court set out the required steps by the victim as –
  2. Allege a contravention at the workplace
  3. Report the contravention immediately
  4. Prove the alleged contravention

Allege and prove failure to take the necessary steps.

A victim who can prove all the above is entitled to a deeming order of liability, and to avoid liability it is then up to the employer to prove that it took the necessary and preventative steps.

The victim in this case had no trouble in proving that the incidents of sexual harassment had taken place, but she failed to convince the Court that she had brought the incidents to her employer’s attention “immediately” as required by the section. The Court referred to a previous decision of the Labour Appeal Court suggesting that the word “immediate” be given a “sensible meaning”. In that case a two-month delay in reporting was found to be acceptable as a “limited delay”. However the Court’s comment that “In my view, a delay is an antithesis of the word as literally defined” is a clear warning to victims – report incidents to your employer without delay!

In any event, held the Court, the victim’s delays in reporting (two and three years respectively) meant she had failed to report “immediately” as required.

The Court was equally unimpressed with her suggestion that she had indeed reported the incidents to her employer in time by discussing them with “colleagues and managers”. That, held the Court, was not enough: “As I see it, to my mind, the reporting must be to an employer through the mechanism in its adopted policy.” She had not done that, so there’s another clear lesson for victims there – make a formal report to the correct person/s in terms of your employer’s policies.

Finally, said the Court, the employer had as soon as it received the reports, promptly investigated them and complied with its obligations in terms of the EEA.

Claiming from the offenders themselves

On a related note the Court mentioned that the victim would have a claim direct against the two employees who harassed her. Once again however, time is of the essence for victims – quite apart from the risk of the claim prescribing, the earlier formal reports are made the greater the credibility likely to be given to them.

13 Jan 2022

DIVORCE: CLAIMING INTERIM MAINTENANCE AND A CONTRIBUTION TO LEGAL COSTS

If you are not the breadwinner in a marriage, one of the daunting prospects of applying for a divorce will no doubt be the worry of how to support yourself (and your children if you have any) whilst the matter winds its way through the court system. Plus, how will you be able to pay for legal assistance?

Our law comes to your rescue here, providing a relatively quick and simple remedy in the form of an “interim relief” order against your spouse for both maintenance and a contribution to your legal costs.

We discuss the principles involved with reference to a “coy about his wealth” spouse ordered by the High Court to “pay up – now!”

Even if your marriage is collapsing around you, you might be afraid to sue for divorce because you have no money to survive on, plus you know that a hotly contested divorce might take years to finalise while your breadwinner spouse fights you tooth and nail every step of the way.
How will you support yourself and your children until the case is finalised? How will you pay your lawyer to run the case for you? Must you wait for the end of the case before you see a cent?

The answer luckily is “no” in that you have a relatively quick and simple remedy in the form of asking the court for “interim relief” in respect of –

  • An order that your spouse pay you –

    Maintenance (for children and/or for yourself) pending finalisation of the divorce,

    A contribution towards your costs in the divorce proceedings,

  • Interim care of, and contact with, your children (if there is any dispute over this aspect).

You may well hear this form of relief referred to in High Court divorces as a “Rule 43 application” (or, if your divorce is in the Regional Court, as a “Rule 58 application”), whilst the technical term for the maintenance is “maintenance pendente lite” (“maintenance pending the litigation”).

At this stage the Court isn’t interested in recriminations, or blame-finding, or the itemised details of your and your spouses’ financial positions. Those enquiries come later, during the actual divorce litigation. At this stage all it wants to know is how much you need, and how much your spouse can afford to pay.

A recent High Court judgment illustrates…

A “coy about his wealth” spouse ordered to pay up – now

  • The warring spouses here are a senior banking executive and his wife, who qualified as a teacher but gave up that career to become a homemaker and mother to the couple’s two children.
  • She asked the High Court for interim maintenance for herself and the children, and for a contribution to her legal costs.
  • In assessing these requests the Court laid out some of the general principles involved –

Unless the care and residence of children is involved the issues are straightforward, relating to “the applicant’s reasonable needs, and the respondent’s ability to meet those needs. The applicant’s entitlement to maintenance must be assessed having regard to the standard of living enjoyed by the parties during the marriage.” This should be “a simple and straightforward calculation of needs and means”. (Emphasis supplied).

The aim is “to avoid substantial prejudice to either party pending divorce. It is not to provide a precise account of what is due to or from either party, according to the parties’ or the court’s sense of morality, propriety, the blameworthiness of the parties’ conduct during the marriage, or their habits of living after the separation.” The case should be cast in practical rather than moralistic terms, and the “emotional heat of a separation” should be kept out of it.

How much money could you be awarded?

Of course every case will be different, but where the parties have, as in this case, enjoyed a high standard of living, the figures can be substantial.

Here for example the Court’s awards were sizeable, commenting that the husband “is coy about his wealth, but there is little doubt that he has a substantial income” – just under R7m in the previous year – with “considerable resources” and an estimated net worth of just over R40 million. Moreover the couple had enjoyed “a very comfortable lifestyle” together.

The end result is that the husband must pay substantially what his wife asked for in the form of R1.6m immediately and thereafter R108k p.m. –

  • R88,701-69 p.m. for the wife and children’s interim maintenance, plus school fees, extra mural activity costs, medical aid and medical costs
  • Rental of up to R20,000-00 p.m., plus cost of utilities
  • R34 656.39 for house moving costs
  • R1,572,945-80 as a contribution towards the wife’s interim legal costs.

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