Avenant Rappoport Attorneys

05/04/2024

The New Law on Parental Leave – A Simple Summary for Employers and Employees

“The crux of the case is about unequal treatment of persons. (Extract from judgment below)
The recent High Court judgment which declared unconstitutional differences between maternity, paternity, parental, adoption and surrogacy leave has received a lot of media attention, much of it focusing on the reasons for the decision – but what has actually changed on a practical level for employers and their employees?

In summary, the Court has given Parliament two years to remedy those sections of two Acts – the BCEA or Basic Conditions of Employment Act and the UIF Act – that discriminate unfairly between mothers and fathers and between different sets of parents on the basis of whether a child was born of the mother, conceived by surrogacy or adopted.

Employers and employees – what you need to know

The matter now goes to the Constitutional Court for confirmation of the declaration of invalidity and of the Court’s interim order that “…all parents of whatever stripe, enjoy 4 consecutive months’ parental leave, collectively. In other words, each pair of parents of a qualifying child shall share the 4 months leave as they elect.”

To break that down, all parents (regardless of gender or category) will, subject to confirmation by the Constitutional Court, be entitled to at least four consecutive months’ leave – what until now has been described in the BCEA as “maternity leave”.

To break that down simply –

Single parents of any gender will be entitled to the full four months’ leave.

A pair of parents will be entitled to the same leave, but they must share it between them They can choose how to take the leave – either one of them can take the whole period, or they can take turns taking leave. Both parents’ employers must, before the child’s birth, be notified in writing of the parents’ decision and of the periods to be taken by each parent.

Adoptive parents will be entitled to the same leave when adopting children under two years of age.

Surrogacy – the same leave will be available to a commissioning parent or parents (a “commissioning parent” is a person who enters into a surrogate motherhood agreement with a surrogate mother).

If it’s unpaid leave, a UIF claim may help…

The BCEA provides job security by obliging employers to grant parental leave rather than lay off new parents, but it does not force employers to make it paid leave. It will be unpaid unless your particular contract of employment specifies that it will be paid.

That’s where the UIF (Unemployment Insurance Fund) comes in, with its provision of “maternity benefit” claims. These will be available to all qualifying parents who are contributors to UIF.

Employers – take advice on how to update your leave policies to comply with these anticipated new provisions.

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 your professional adviser for specific and detailed advice.

© LawDotNews

01/03/2024

WE ARE HIRING!!

Avenant Rappoport Inc is looking for a Conveyancing Paralegal to join our team. The candidate must be dedicated, hard working, diligent and be able to apply considerable attention to detail with a minimum of 5 years’ practical experience in bond cancellations and bond registrations and must have a working knowledge of LexisConvey.

Experience in FNB and ABSA bond registrations and cancellations will be highly advantageous.

If you meet the above requirements, please send your CV to-

[email protected]
[email protected]

10/11/2023

Buying a Used Car – Your Rights

“The buyer needs a hundred eyes, the seller but one” (Old proverb)
You buy a “pre-loved” vehicle which turns out to be a complete dud. You go back to the dealership which says “sorry, you bought it as is, not our problem”. What are your rights?

Buying from a private seller

When we discuss the CPA (Consumer Protection Act)’s consumer protections below, note that the CPA only applies to dealerships and to other sellers acting “in the ordinary course of business”. Private sales won’t fall under the CPA and any savvy private seller will sell subject to an “as is” or “voetstoots” clause, which will be valid and means that unless you can prove fraud on the part of the seller in concealing defects from you, the risk is on you. Bottom line – have the vehicle fully checked out before you pay a cent!

Buying from a dealership – CPA to the rescue!

Dealership sales are another matter entirely. The CPA provides that –

Goods must be “reasonably suitable for the purposes for which they are generally intended … of good quality, in good working order, and free of any defects … will be useable and durable for a reasonable period of time, having regard to the use to which they would generally be put and to all the surrounding circumstances of their supply”.

You are automatically given an implied warranty of quality that goods comply with those requirements and standards.

If the goods fail to meet this standard, you can return them (at the seller’s risk and expense) within 6 months of their delivery and then the seller must – at your direction, the choice is yours – either

Repair or replace the goods, or

Refund you in full.

Note that the defects complained of cannot be just cosmetic or inconsequential. As the SCA (Supreme Court of Appeal) has put it: “Not every small fault is a defect as defined. It must either render the goods less acceptable than people generally would be reasonably entitled to expect from goods of that type, or it must render the goods less useful, practicable or safe for the purpose for which they were purchased.”

Four cases in point…

The National Consumer Tribunal deals with a large number of consumer complaints, and many of them relate to used car disputes. If you complain, it will be for you to prove that the dealership is in breach of the CPA, and if you succeed in doing so the Tribunal can impose administrative fines on the dealership as well as help you get redress. Let’s have a look at a few recent Tribunal judgments to see how that works in practice –

1. A breakdown after four months

A couple bought a Mercedes Benz 220 CDI Automatic motor vehicle for R225,900. Four months later they suffered a breakdown, and were quoted R47,782 for repairs. The dealership replied that it was not liable because the issue was wear and tear, the buyers knew of the vehicle’s high mileage and they had declined to buy a warranty.

Declining a “goodwill” offer of R10,000 from the dealership, the buyers referred the matter to the Motor Industry Ombudsman and thence it found its way to the Tribunal. The Tribunal, finding that the dealership had failed to make out a case that the damaged parts was a wear and tear issue, held the dealer guilty of prohibited conduct in terms of the CPA and ordered the dealership to refund the buyers in full.

2. Wrong tyres fitted – ordered to replace and to pay a R50k administrative fine

A consumer bought a 2015 Mercedes Benz C200 Bluetec Avantgarde A/T motor vehicle for R300,469 and two days later established that its tyres were standard, and not run-flat per the manufacturer’s specifications. That meant there was no room in the vehicle for a spare wheel, plus she was told that this could result in her insurers repudiating any claims made.

The dealer refused to act, claiming that the standard tyres were “100% according to specification and road legal as per roadworthy”. The Tribunal however held the dealership in breach of the CPA, ordered it to replace the tyres with run-flat tyres, and imposed a R50,000 administrative fine.

3. Continuous breakdowns and a R100k fine

A 2015 model Toyota Avanza vehicle, with 172,475 kilometers on the odometer, kept breaking down and being repaired by the dealership. Eventually, three months after purchase, the buyer had had enough and told the dealer to take the vehicle back and refund him. The dealer however insisted on repairing the vehicle once again, and held the buyer liable for a R6,000 shortfall on a warranty policy repair, plus R58,000 in storage charges. He was unable to pay, plus he ran into arrears on his financing agreement and the financing bank repossessed and sold the vehicle.

The dealership claimed that the buyer had acknowledged that the vehicle was in good condition by signing a checklist to that effect and argued that the buyer “purchased the vehicle pursuant to his satisfaction thereof”. Finding on the facts however that the dealership was guilty of conduct prohibited by the CPA, the Tribunal imposed an administrative fine of R100,000 on the dealership. The buyer can now claim his damages in the High Court with a certificate issued by the Tribunal confirming its findings.

4. Undisclosed accident damage reduces a vehicle’s value by R110k

Bought for R342,900, a 2015 model Isuzu KB300 turned out to have been involved in a major collision before it was sold to the buyer, and to have a trade value of only R230,900. Finding that the material fact of the collision was not disclosed to the buyer at the time of sale, the Tribunal held the dealer to have engaged in prohibited conduct which caused the buyer financial prejudice, entitling him to compensation. He now has a Tribunal certificate to that effect and can pursue his damages claim accordingly.

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 your professional adviser for specific and detailed advice.

© LawDotNews

31/10/2023

How Does the New Divorce Act Ruling Affect You?

Media reports of the recent Constitutional Court decision holding a section of the Divorce Act unconstitutional and giving Parliament 24 months to remedy that haven’t always been clear about who needs to be aware of this, and who doesn’t.

Firstly, understand the three “marital regimes” available to you

Legally, marriage amounts to a binding contract, and you have the right to choose between three possible “regimes” –

Marriage in community of property: All of your assets and liabilities are merged into one “joint estate” in which each of you has an undivided half share. On divorce or death the joint estate (including any profit or loss) is split equally between you, regardless of what each of you brought into the marriage or contributed to it thereafter. This is the “default” regime – so you will automatically be married in community of property if you don’t specify otherwise in an ANC (ante-nuptial contract) executed before you marry.

Marriage out of community of property without the accrual system: Your own assets and liabilities, both what you bring in and what you acquire during the marriage, remain exclusively yours to do with as you wish. Note here that the “accrual system” (see option 3 below) will apply to you unless your ANC specifically excludes it.

Marriage out of community of property with the accrual system: As with the previous option, your own assets and liabilities remain solely yours. On divorce or death however you also share equally in the “accrual” (growth) of your assets (with a few exceptions) during the marriage.

Secondly, what’s the new ruling all about?

If you were married out of community of property (a) without the accrual system (option 2 above) after (b) 1 November 1984, you previously could not ask the court for a “redistribution order” – a reallocation of assets between spouses to ensure a fair split. Your marriage could end (be it through divorce or death) with one of you in a strong financial position and the other in a dire financial position, with a court having no discretion to help the spouse with less or no assets. You could literally be left destitute after possibly decades of marriage, with no redress and no claim against your spouse’s assets.

A 2021 High Court order (now confirmed in a Constitutional Court decision) declared unconstitutional the section of the Divorce Act which led to that unhappy state of affairs, so that you can now ask the court for a redistribution order no matter when you were married.

What does it mean in practice?
Does this change affect you? The change does not affect you if you were married –

In community of property (option 1 above), or

Out of community of property with accrual (option 3 above), or

Out of community of property without accrual (option 2 above) before 1 November 1984.

The change does affect you if you were married out of community of property without accrual (option 2 above) after 1 November 1984.

What new rights do you have? You now have the right – previously denied to you – to apply for a fair, court-ordered asset redistribution between spouses.

Are you automatically entitled to a redistribution of assets? No – you will have to convince the court that “it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner.” In other words, you must prove what contributions you made to the marriage to justify your claim to redistribution.

Will the court take anything else into account? What about what you agreed to in your ANC? Importantly, the court can take into account “any other factor which should in the opinion of the court be taken into account”. What you agreed to in your ANC is bound to be a consideration, and as the Court here put it: “This is as wide as can be.The fact that the parties concluded an antenuptial contract excluding the accrual regime could be taken into account.The weight this factor should receive would depend on the circumstances.” Bottom line – the court can take anything relevant into account, including what you agreed to at the time of your marriage.

About to marry?

Which all confirms the importance of making the correct legal choices before you marry to avoid uncertainty, heartache and dispute down the line. Take professional advice on which option is best for you!

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 your professional adviser for specific and detailed advice.

© LawDotNews

26/10/2023

Our hearts go out to struggling parents and teens this year.

Please show your support by building a SantaShoebox or support with any of the listed items, any food items is also welcome.

Drop off point : Merlot House, The Vineyards Office Estate, 99 Jip de Jager Drive, De Bron or Whatsapp Elzaan on 071 876 5310 for alternative arrangements.

Attorneys, Notaries and Conveyancers

23/10/2023

Dementia: Understanding Your Legal Options

“Dementia is the plague of our time, the disease of the century” (Unattributed)
Dementia is a widespread medical condition that affects people of all ages but particularly the elderly, and includes conditions like Alzheimer’s. One of the most significant challenges of dementia is the loss of mental capacity, making it difficult for individuals to make crucial decisions, including those related to their legal affairs, finances and care. This can be particularly problematic when family members are unprepared or unaware of the practical and legal implications.

Beware the Power of Attorney myth

One common misconception is that a signed Power of Attorney (PoA) can authorise a family member to take control of the individual’s financial affairs in perpetuity. In fact, a PoA is only valid as long as the person who granted it maintains “legal capacity”, in other words an understanding of its implications. If and when dementia kicks in, the PoA automatically becomes invalid.

Enduring Powers of Attorney, which continue even after someone loses legal capacity, are valid in some countries but are unfortunately not yet recognised in South Africa.

So, what are your legal alternatives for dealing with dementia?

You will typically have three legal options available –

Curatorship: This involves appointing a curator bonis through a High Court order to manage the financial affairs of the person with dementia (a curator ad personam may in rare cases also be needed to manage the person’s personal affairs). This process can be complex and expensive, but in some cases it may be the only viable option available.

Administration: Similar to curatorship but less complex, less expensive, and quicker, this involves an application to the Master of the High Court for the appointment of an Administrator.It is only available when your family member is a “mentally ill person or person with severe or profound intellectual disability”, which excludes cases of purely physical frailty or disability, and suggests that in cases of mild dementia or mild cognitive impairment only curatorship is an option – but take legal advice on your specific circumstances. An extra element of cost and delay applies in larger estates, in that the Master must commission an investigation into any application where the assets involved are over R200,000 and the annual income is over R24,000 p.a.

Special Trust: An alternative option is to consider a trust or special trust, which can be established if your family member suffers from an early onset of dementia but is still lucid and has legal capacity. All trusts have advantages in that they allow individuals the freedom to choose upfront who the trustees will be and what powers and duties they will have, whilst special trusts come with significant tax benefits over ordinary trusts. Individualised professional advice is essential here.

Understanding the available legal avenues can help you navigate this difficult journey, and with proper planning, personalised legal advice and early action, you can ensure that your family member’s legal and financial well-being is protected at all times.

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 your professional adviser for specific and detailed advice.

© LawDotNews

19/10/2023

When legal excellence matters.

17/10/2023

Suing for a Supermarket “Slip ‘n Trip” – What Must You Prove?

“The path is smooth that leadeth on to danger” (William Shakespeare)
Tripping over aisle blockages or slipping on floors made slick by spillages can happen in even the best-managed supermarkets, and injured shoppers regularly turn to our courts to claim damages from shopkeepers and building owners.

It’s no surprise therefore that this sort of claim has its own (informal) name – the “slip ‘n trip” case. A recent High Court judgment provides some clarity on what you will need to prove should you be one of the unfortunate shoppers who are injured in this way.

A shopper slips, and sues :

A shopper slipped on an unidentified spillage, injuring herself and needing hospitalisation and further treatment for unspecified orthopaedic injuries.|

Supermarket employees initially undertook to cover her medical expenses but later the supermarket denied liability.

It admitted that it had a “general duty of care to customers visiting its store to ensure that it afforded them a safe environment within in which to shop”, but claimed the shopper’s fall was “due to her sole negligence in that she failed to keep a proper lookout, failed to take reasonable steps to prevent her fall and failed to avoid injury to herself.” In the alternative it alleged contributory negligence on her part. It also sought to blame its cleaning service contractors and/or an independent merchandiser who had been working in the aisle in question.

The shopper took her claim for damages to the High Court, which confirmed that what you will have to prove is that the shop –

Should have foreseen the reasonable possibility of its conduct causing your injury and monetary loss; and

Should have taken reasonable steps to avoid that loss; and

Didn’t do so.

The Court held that, on the evidence presented, the shopper had proved that “she took proper care for her own safety on the morning in question. The fact that she may have moved down aisle 5 at more than a leisurely dawdle did not occasion her fall: she did not slip or trip because of haste or inattention but because she stepped in some spillage of unknown origin.” (i.e., you need to prove you weren’t negligent)

And even if the spillage was a small one (supposedly the size of a R2 coin in this case) “it really matters not what the extent thereof was as its mere presence on the supermarket floor presented a risk to any unassuming shopper, who would be expected to spend her morning looking at the merchandise on the shelves and not peering down at the floor ahead of her.” (i.e., keeping a proper lookout doesn’t necessarily mean peering down at the floor ahead of you all the time)

In principle, once a shopper has “testified to the circumstances in which he fell, and the apparent cause of the fall, and has shown that he was taking proper care for his own safety, he has ordinarily done as much as it is possible to do to prove that the cause of the fall was negligence on the part of the [supermarket] who, as a matter of law, has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them.

The shopper in this case had done all that, raising a rebuttable presumption of negligence by the supermarket so that, in the absence of an explanation from it, it was inferred that a negligent failure on its part to perform its duty must have been the cause of the fall. In this case it provided no evidence of how long the spillage had been on the floor or how long it was reasonably necessary for it to discover the spillage and clean it up. (i.e., once you prove what happened and that you took proper care for your own safety, it’s for the supermarket to prove that it wasn’t negligent)

The shopper is entitled to whatever level of damages she can prove.

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 your professional adviser for specific and detailed advice.

© LawDotNews

13/10/2023

Can Your 👍Thumbs-Up Emoji or E-Signature Seal a Deal?

“…data messages or electronic signatures are now recognised in our law as equivalent to a proper basis upon which a written contract can be concluded. Thus, a valid written contract can be concluded electronically.” (Extract from the South African judgment below)
ECTA (the Electronic Communications and Transactions Act) means that you can in many cases create legally binding agreements purely electronically – via email, WhatsApp, social media and the like.

There is of course both risk and opportunity here. On the one hand, the old hassles of printing everything out and signing reams and reams of paperwork have become unnecessary, even undesirable, for many transactions (but not all – take advice in doubt). Remember to keep proof of everything.

But be careful what you e-agree to!

On the other hand, beware the risks! We tend to focus more on what we’re agreeing to when it involves reading and signing printed documents, and when everything is electronic it’s a lot easier to gloss over details, and to underestimate the importance of subject matter. Particularly, perhaps, in a social media environment, where things often evolve at pace and with an air of informality.

Let’s start our discussion off with a recent High Court confirmation of the binding nature of electronic signatures.

An e-signature binds a debtor to a R1.5m deal
A bank sued a debtor who, it said, had electronically signed a credit agreement to buy a R1.5m BMW X5 motor vehicle and then defaulted on instalment payments.

Sued for damages and for return of the vehicle, the debtor countered by denying that he had entered into a valid electronic contract. He said his brother-in-law/employer had purchased the car in his name and had signed the agreement electronically.

The bank, however, produced evidence (including recorded telephone conversations between the debtor and its call centre) to support its claim that the electronic signature was indeed the debtor’s.

Commenting that “…data messages or electronic signatures are now recognised in our law as equivalent to a proper basis upon which a written contract can be concluded. Thus, a valid written contract can be concluded electronically”, the Court held that the debtor had indeed concluded the contract, and that the bank was entitled to cancel it, demand return of the car, and claim damages.

Can a “Thumbs-Up” 👍 emoji bind you to a contract?

A Canadian Court recently made international news after holding that a👍thumbs-up emoji constituted approval of a contract (a sale of flax), thus creating a valid contract.

The buyer in that matter had texted to the (proposed) seller an image of a purchase contract, along with the message: “Please confirm flax contract”, and the seller had responded with a 👍thumbs-up emoji. When sued for failing to deliver per the contract, the seller claimed never to have accepted the contract – all the emoji meant, he said, was that he would think about it. However, on the particular facts of this matter, the Court concluded that the emoji had indeed signified the seller’s acceptance of the contract. The seller must now pay the buyer Can$82,200.21 (almost R1.2m at date of writing) in damages for breach of contract.

But would the result have been the same in a South African court? It seems logical that it would, provided of course that in the particular context of the matter the emoji clearly meant “I accept” and not perhaps “got it, will come back to you with an answer” or something similar.

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 your professional adviser for specific and detailed advice.

© LawDotNews

12/10/2023

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04/03/2022

Ons nuwe Aktebesorger. Hy maak ons trots.
Baie geluk Liam Connan. Sommer dubbeld geluk so op jou 30ste verjaardag.