Thoughts Of The Week


Domestic Workers Victory

According to Statssa, South African households employ approximately one million domestic workers. As a vulnerable employee group, government has over the years developed labour laws to provide protection to these employees.

Although much has been done to include domestic workers in the scope of the Labour Relations Act, the Basic Conditions of Employment Act and the Unemployment Insurance Act, domestic workers employed in private households remained excluded from the Compensation for Occupational injuries and Diseases Act (COIDA) for compensation for occupational injuries and diseases.

In May this year, in the judgment in Mahlangu and Another v The Minister of Labour & Others, the High Court declared that s1(xix)(v) of COIDA is unconstitutional and invalid to the extent that it excludes domestic workers in private households from the definition of “employee”. The department is currently engaged in a legislative process to amend COIDA.

For assistance with employee matters, contact our Labour Law Team at info@stbb.co.za.

To Appeal Interim Relief (Rule 43) In Divorce Matters

A ”Rule 43 application” is an application for interim (provisional) relief in divorce matters. It allows a party to a divorce to seek interim relief from the court in respect of maintenance, care and contact with a child and a contribution towards his/her legal costs.

Were such an interim order to be appealed, the Rule 43 Order would effectively be put on hold pending the outcome of the appeal. One consequence would be that if any maintenance provisions were included in the order, these could not be enforced (yet). This would clearly be to the detriment of the child and the person in whose favour the award was made.

In the recent judgement of S v S, the Constitutional Court found that section 16(3) of the Superior Courts Act, which prohibits an appeal against a Rule 43 Order, does not infringe any constitutional rights of a party. Rather, allowing such an appeal would contradict the purpose of such an application.

For more information, contact our Family Law Department.

Can I Change My Mind After Signing A Contract?

John is eager to secure accommodation at university for his daughter and concludes a lease agreement for a flat near campus. Before commencement of the academic year, she has a change of heart and decides to pursue studies at a different institution. What are John’s rights?

While it happens that a contracting party’s needs may change after entering into a contract, it may be very difficult for John to resile from that commitment. The point of departure is that a party may be held to the agreement for the duration thereof, alternatively his/her request to resile therefrom (referred to as a repudiation or anticipatory breach) may be accepted by the innocent party, subject to the innocent party’s rights to claim damages as a result thereof.

The agreement itself may, in certain circumstances, come to John’s aid. This may take the form of a rouwkoop clause, or cancellation by notice; however, these “outs” are normally linked to a fee payable to the innocent party. Certain legislation, such as the CPA and NCA, has also introduced “cooling-off” periods which allow John to walk away (when applicable) within a short time after concluding the agreement. These are deemed to form part of a specific set of agreements; however, these “cooling-off” rights have very limited application and need to be considered before concluding agreements.

Whatever the reason that you may wish to get out of a contract or are faced with a situation where another party seeks to resile from a contract concluded with you, your first port of call should be to communicate with your attorney for assistance.

Contact STBB for assistance on www.stbb.co.za.

Suretyship and a Spouse’s Consent

ARE THERE DEFENCES TO LIABILITY UNDER A SURETYSHIP IN A MARRIAGE IN COMMUNITY OF PROPERTY?

Strydom executes an unlimited suretyship in favour of Engen for the debts incurred by Soutpansberg Petroleum, a company of which he was a director. He was married in community of property at the time, but his wife is not involved in the transaction as it relates to her husband’s ordinary work and business. However, when Soutpansberg is subsequently liquidated, Strydom denies liability for Engen’s claim, arguing that the suretyship is invalid due to the absence of his wife’s consent.

The Matrimonial Property Act states that a spouse who is married in community of property must have the written consent of the other spouse to bind himself/herself as surety. The prohibition does not apply where the spouse who signs the suretyship did so in the ordinary course of that spouse’s profession, trade or business.

In the above matter, finally decided in the Supreme Court of Appeal, the Court noted that it was a factual enquiry to examine whether an action was performed in the ordinary course of one’s profession, trade or business. Where the business was carried on through a company, the factual question was whether Strydom’s involvement in the company business was his business, and whether the execution of the suretyship was in the ordinary course of his business tasks (and not that of the company). As it was shown in Court that Strydom worked at the core of Soutpansberg’s business and that his activities there constituted his business, the exception applied and the suretyship was not invalidated by the absence of his wife’s consent.

Take advice when signing a suretyship to make sure what your and your spouse’s liabilities are. Contact STBB for assistance on www.stbb.co.za.

The Tenant’s Deposit

WHILST PAYMENT OF A DEPOSIT IS NOT A VALIDITY REQUIREMENT, CERTAIN RULES APPLY IF A DEPOSIT IS AGREED UPON IN A LEASE

In lease agreements relating to residential property, the landlord is obliged by the Rental Housing Act to place the amount received as a lease deposit in an interest-bearing account held with a financial institution. The interest rate applicable to this account may not be less than the rate applicable to a savings account at a financial institution. The tenant may request a statement of the interest earned on the money at any time during the tenancy.

If the deposit is paid to the account of a registered estate agent on behalf of the landlord, it must similarly be invested; the deposit and any interest thereon is then dealt with in accordance with the provisions of the Estate Agency Affairs Act.

Registering Solar Power Installations

CAPE TOWN DUE DATE FOR REGISTERING SOLAR POWER INSTALLATIONS

Owners of properties with solar power systems, and which properties are situated in the jurisdiction of the City of Cape Town Municipality, must register their installation with the City by 31 May. The initial deadline was set for the end of February 2019, but the City extended the grace period to Thursday this week. In this Youtube video, the City explains why such regulation is necessary and also which exceptions apply, such as in the case of solar powered water geysers.

According to the City’s website, applicants can either register a grid-tied system or an off-grid SSEG.

For a complete guide to registering your systems, visit: Grid-tied systems application process or Off-grid systems application process

Get The Democracy You Deserve: Go Vote!

Statistics show that although some 9.3 million South Africans did not register to vote in the upcoming elections, 26.7 million citizens are registered, and tomorrow they will have the opportunity to have their say on who should govern for the next four years.

Various tables and figures on the Stats SA webpage show that the quality of life have improved for many South Africans since the landmark 1994 elections that ended white-minority rule. For example, it shows that the number of households with access to electricity has risen from 58.2% in 1996 to 84.4% in 2017; households with access to piped water has risen from 60.8% in 1996 to 88.6% in 2017.

But challenging inequalities remain, and we vote for the party we trust will best address this. There’s no fence to sit on. Go vote!

Contact STBB at info@stbb.co.za.

Transfer Duty And Divorce

Where a divorce settlement agreement provides that a spouse will acquire sole ownership in the whole or a portion of property registered in the name of his or her divorced spouse, the transaction is exempt from transfer duty. Does it make a difference if this property was registered in the name of an entity? Yes, as the exemption applies only where the spouse held sole ownership in his or her personal capacity.

Thus, for example, where a property was registered in the name of a trust and was made over to a divorced spouse in terms of a settlement agreement, transfer duty is payable. Remember further that from SARS’s point of view, the ‘transaction’ occurred on the date of the divorce order, and the receiving spouse must pay the transfer duty within 6 months after that date, failing which a penalty on the outstanding amount becomes payable.

Contact us at for assistance at info@stbb.co.za.

Calculating The Amount Of Child Maintenance

In our law, both parents have a duty to support their child. This duty encompasses direct and indirect costs and includes educational and medical expenses, food, transport, clothing and accommodation.

But how is an amount arrived at? The amount of the maintenance is determined with reference to the parents’ financial circumstances as well as the reasonable needs of the child.

The Maintenance Act creates a platform for one parent to apply for a maintenance order against the other to enable the first mentioned parent to contribute appropriately towards their child’s expenses.

Contact us on info@stbb.co.za should you require assistance in any disputed maintenance claims.

Interest On Deposit In Attorney Trust Account

With effect from 1 March 2019, interest earned on moneys invested by your attorney in a designated trust account, must be dealt with in accordance with section 86(4) of the Legal Practice Act.

This section provides that the attorney firm must pay 5% of the interest earned to the Legal Practitioners Fidelity Fund.

As agreements for the sale of immovable property often have a provision requiring the purchaser to pay the deposit to the conveyancing firm’s trust account, to be invested for the benefit of the purchaser, this new provision will impact on such deposits.

Contact your STBB conveyancer for assistance on how to reflect this new provision in your sale agreement.

STBB Meerkats

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