Aging Employees: When Must They Retire?

Legal
Record numbers of Baby Boomers are now reaching their 60s, and if you are an employer in any size of business (from the smallest family-owned enterprise to the largest corporate), make sure now that you have a policy in place to handle the thorny question of compulsory retirement. This is vital – sooner or later you are going to have an employee turning 55 or 60 or 65, and if you think you can just say “Happy Birthday Kim, time for you to retire, see you around” you are in for big trouble. So what’s the legally required retirement age? The problem is that nothing in our law imposes a standard retirement age on employees. So trying to force someone to retire at an age that you unilaterally choose (no matter how…
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What To Do When Someone Dies

Legal
The inevitability of death doesn’t detract from the shock and distress that it brings to the grieving survivors, and much as we don’t like to plan for these things it will help at least a little to know what to do in practice after a death. The formalities There is unfortunately a lot of red tape involved, but your family doctor, undertaker and spiritual advisor (if you have one) will help you with or attend to many of the formalities and practicalities – Firstly, you will need a Notice of Death which sets out the identity of the deceased as well as the date, time and cause of death. If the deceased died at home, call in your family doctor for help. The deceased will be transported to a mortuary or funeral…
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Dagga – Just How Legal is it Now?

Legal
Whether or not you personally have ever had (or intend to have) anything to do with cannabis/marijuana/weed/dagga, and whether or not you agree with the recent Constitutional Court ruling in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30 that partially decriminalises it, the fact remains that the highest court in our land has spoken. All of us should be aware of the implications. The media has been awash with reports (sometimes conflicting, often vague) of what the recent Constitutional Court ruling actually means in practice. Whether you agree with the ruling or not, and whether or not you personally have ever had (or intend to…
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Selling Your House: Disclosing Defects

Legal
When you sell anything, our law requires that you deliver it to the buyer without any defects. That’s not easily achieved with property and you should always protect yourself with a voetstoots (“as is” or “without any warranty”) clause in your sale agreement. A recent High Court decision in the case of Van Rooyen v Brown and Another (A3104/2015) [2018] ZAGPJHC 453 again confirms that when it comes to selling your house, honesty is indeed the best policy. Specifically, disclose all defects you know of to potential buyers, or risk expensive litigation and damages claims. Defects and Defences The buyers of a house, who had paid R2.3m for it (the seller having reduced her original asking price from R3.6m to get a sale), sued the seller for damages in respect of various defects. These, they…
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Do You Need a Will?

Legal
It’s natural for one not to want to make plans for one own’s mortality, but we owe it to ourselves and our loved ones to do exactly that, and to do it without delay. Why? The Yale Book of Quotations quotes “‘Tis impossible to be sure of any thing but Death and Taxes,” from Christopher Bullock’s book, The Cobler of Preston (1716). Simply put, sooner or later we all die … but no one knows exactly when. Without a Will, you forfeit your right (and duty) to ensure that your loved ones are properly catered for after your death. A professionally-drawn Will will also greatly reduce the risk of your grieving family having to deal with uncertainty as to your wishes, bitter infighting and expensive litigation. What happens if you don’t leave…
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Buying Your First House – An Action Plan

Legal
So you’ve decided to buy your first house – exciting! There’s nothing like owning and living in your very own dream house, and if you choose wisely your home could well be one of your most important investments ever. Get started with these tips – First, understand how much cash you will need Make a list of all the costs you need to plan for (there are plenty of convenient online calculators to help you figure out what your transfer and bond costs are going to be so Google for one that suits you) – Deposit: Unless you pay the whole purchase price in cash, you will need to take out a loan from a bond – which is normally secured through the registration of a bond over the property. You…
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“You’re Fired for Misconduct” v “No, I Resign” – Who Wins?

Legal
You want to charge one of your employees with serious misconduct so you institute disciplinary proceedings. To avoid a possible dismissal the employee resigns “with immediate effect”. Can you go ahead with disciplining the employee? Until recently the answer was no, the Labour Court having decided in such a matter that immediate resignation brings an end to the employment relationship and puts the employee beyond your reach. Employers will be relieved to know that a new Labour Court decision in Coetzee v Zeitz Mocaa Foundation Trust and Another (C517/2018) [2018] ZALCCT 20 has reversed that. Looking for a loophole The Executive Director and Head Curator of an art museum was invited by his employer to “make written representations in respect of allegations of serious misconduct”. He supposedly then resigned immediately and without notice,…
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Your Body Corporate and Arrear Levies: To Sequestrate or Not To Sequestrate?

Legal
Levies are the lifeblood of a sectional title scheme, and the Body Corporate has a duty to recover arrears from defaulting owners. It has the power, in addition to following standard debt collection procedures and perhaps approaching the Community Schemes Ombud for assistance, to apply for the sequestration of the owner’s estate. Indeed just the threat of a sequestration application is sometimes enough to frighten a recalcitrant debtor into paying up. But, as Shakespeare might have put it, there’s an alarming “rub” here that body corporate trustees ignore at their peril. It arises from ‘the danger of contribution’ in insolvent estates. In a nutshell, where the ‘costs of sequestration’ exceed the funds in the estate available to pay them, proved creditors may well have to contribute towards those costs in…
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Suing Your Security Company: The Case of a Burgled Butchery

Legal
When you employ a security company to provide alarm monitoring and “armed response” services, you are paying them to protect you from criminals. What are your rights if they don’t do their job properly? A recent High Court case of M J Repapis Enterprises CC t/a Inyama Rama Butchery v Red Alert (Pty) Ltd (1879/2014) [2018] ZAECGHC 42 illustrates. The alarm, the safecrackers and the “all in order” report Burglars broke into a butchery one evening through the roof, triggering an alarm. They cut open two safes with angle grinders and escaped into the night with a large amount of cash. The security company contracted to provide “monitoring, reaction, reporting and maintenance security services” to the butchery had received the alarm signal and identified the zone as being in the roof/ceiling. The vehicle…
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Lending Money Repayable “On Demand”: Beware Prescription!

Legal
You will know that most debts prescribe (become unclaimable) after 3 years, so as a creditor you need to know exactly when it starts running. From that moment on, the clock is ticking… A recent Constitutional Court case highlights one particular instance where prescription kicks in a lot earlier than you might think – namely, in the case of the “on demand” loan. What “on demand” really means Lending money to someone on an “on demand” basis means that the loan need only be repaid to you when you actually “demand” it from the debtor. It’s a common way of making loans, particularly to family members and between related businesses, and you may think that because no fixed date for repayment is set, prescription never starts to run. Not, at least, unless and…
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