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16/09/2016

If, like me, you are tired of reading almost daily in the news, in the streets, at the local pub or anywhere else hate speech or derogatory offensive and hurtful racist language, then the decision of the Eastern Cape High Court earlier this month, will make you feel better.

In the matter of Thembani v Swanepeol, the High Court has confirmed the finding of the Magistrate in a referral in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The Magistrate hearing this matter as a matter of first instance found that Mr Swanepoel had used the K***** word at Mr Thembani several times in an exchange which ended in a physical altercation.

The magistrate confirmed that this conduct amounted to hate speech and ordered Swanepoel to pay Thembani R100,000.00 (one hundred thousand rand). The finding of the Magistrate was upheld upon review by the Eastern Cape High Court.

27/08/2015

EMPLOYEE LEFT WITH NO OPTION BUT TO RESIGN (CONSTRUCTIVE DISMISSAL) & THE LAW

For many years employees who have felt that the working relationship between themselves and the employer had become intolerable and that they had to resign, not only had to bear the onus of proof in dismissal but also had to prove that the employee had no other option other than to resign. Many arbitration awards (and indeed labour court decisions) have echoed this principle and in fact have failed to find that an employee who resigned had been constructively dismissed due to the fact the employees had other options available to them - thankfully the constitutional court has clarified this position in the Strategic Liquor Services matter, in finding that the only requirement is that the working relationship had become intolerable through the conduct of the employer to succeed on the basis of constructive dismissal.

13/04/2015

MINIMUM SENTENCES FOR CERTAIN SERIOUS OFFENCES

People often ask what a person would likely get as a sentence when charged with a certain crime. The truth is that the trial court has a discretion in the imposition of sentencing. However as a guideline to answer most peoples questions here is a brief summary of the minimum sentence's which the Court may impose to certain offences. Please note the list is not exhaustive and/or you should rather consult with your attorney before relying upon the advice herein contained :

1. Life sentence for anyone convicted of premeditated murder, murder of a SAPS officer or state witness, murder relating to witchcraft or murder and r**e together. Life sentence for anyone convicted or gang r**e or repeated r**e, or r**e whilst the perpetrator has knowledge that he is HIV-positive.

2. minimum of 15 years (first offence) for murder (not premeditated) Aggravated robbery (armed robbery) or robbery involving a car-jacking.

3. minimum of 15 years (first offence) drug offences and firearm offences where value exceeds R50,000. Fraud and theft where the value exceeds R500,000.

4. Second offender minimum sentence is 20 years and third offender minimum sentence is 25 years.

5. in cases of sexual assault or r**e, the minimum sentence for a first offender is 10 years, second offender is 15 years and third offender is 20 years.

6. in cases of assault with intent to do grievous bodily harm where the victim is under 16 years old the same sentences as provided for in (5) above is applicable.

7. lastly the use of a firearm in carryong out a robbery or an act of public violence / assault carries a mimumum sentence of 5 years for a first offence, 7 years for a second offence and 10 years for a third offence.

notwithstanding the above, if the Court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed it must then impose the lesser sentence.

12/11/2014

NEW PRESCRIBED RATE OF INTEREST

The Prescribed Rate of Interest Act 55 of 1975 prescribes the maximum rate of interest that may be claimed by a creditor in respect of interest bearing debts where the rate of interest is not governed by another law, agreement or trade custom. In other words the amount of interest you can add to your claim once your attorney has demanded performance by a debtor and placed him in mora.

For the past 20 years the prescribed interest rate as set by the Minister of Justice and Constitutional Development was 15.5% per annum. However this has now changed.

As from 1 August 2014, all debts claimed, in which the debtor has been placed in mora, the new prescribed rate of 9% per annum will be applicable.

All debts in which interest was already accruing before 31 July 2014 the previous prescribed rate shall remain applicable and be levied at 15.5%.

14/05/2014

THE PAROL EVIDENCE RULE AND INTERPRETATION OF VAGUE CLAUSES

In a recent decision in the Supreme Court of Appeal an agreement between a golf estate and a developer, mandated the Developer to build a club house thereon "duly furnished in accordance with the upmarket quality and nature of the proposed development."

The agreement further had a standard, non-variation clause, which provides that no amendments thereto are of any force or effect unless reduced to writing and signed by all parties.

In this particular matter the developer accordingly built a club house, however the Golf estate argued that the club house was not in accordance with the "upmarket quality and nature of the proposed development".

The issue that this raises is that the clause in question was vague and that it did not give any indication or yardstick against which to measure what the reasonable person would perceive to fall within "the upmarket quality and nature of the proposed development."

In the court a quo's finding it took into consideration a newsletter sent out post-contractu, as to interpret what the Developer had intended - whilst this may in fact seem fair and reasonable - the problem is that the Court cannot admit post-contractual extrinsic evidence.

The Parol evidence rule clearly prohibits the admission of any extrinsic evidence that alters, contradicts, varies or adds to a written agreement.

It is thus advisable to consult with an attorney prior to the conclusion of any written agreement to which you feel uncertain about the implications thereof.

14/03/2012

ARBITRATION - remittance and appeal?

In commercial transactions it is becoming more and more common to have an arbitration clause contained in the agreement, in terms of which in the event of any dispute between the parties, recourse shall be had to an arbitrator with relevant experience to hear the parties dispute. Arbitration proceedings follow similar principles to civil procedure in the courts, however expedite the hearing of matters and usually the minimise costs involved therewith.

However it is important to note that in terms Section 28 of the Arbitration Act 42 of 1965, as amended, provides that unless the arbitration agreement provides otherwise, an award shall subject to the provisions of the Act be final and binding and not subject to any appeal.

Note however that in terms of Section 32 of the Act a party may within 6 weeks of publication of the award remit the award back to the arbitration tribunal for reconsideration provided good cause is shown.

Lastly if a member of the arbitration tribunal has misconducted himself with regard to his duties; or committed some gross irregularity; or has exceeded its powers; or the award has been improperly obtained, the aggrieved party may approach the court for an order setting aside the award. Provided good cause is shown to the court and the application is lodged within 6 weeks of publication of the award.

Aarninkhof Attorneys are commercial law practitioners and are able to assist in the drafting of agreements and the representation in arbitration. Contact us if you have any queries.

01/03/2012

POLYGRAPH TESTING IN LABOUR MATTERS

FAWU obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Salt River (2010) decision in the labour court has ruled that "polygraph testing although frequently used in context of workplace discipline, is by no means uncontroversial. Polygraph results on its own can never be conclusive proof of guilt by an employee. At best the results on its own could be used as part of the investigation process to determine whether or not a further investigation into the conduct of a particular individual is warranted.

In order to comply with the test of fairness, the labour court held that the assessment would need to be: (i) shown to be scientifically valid and reliable (ii) shown to be capable of being fairly applied (iii) shown to not be biased against any employee or group.

Accordingly a polygraph test on its own cannot be used to determine guilt of an employee and therefore a justification for dismissal, and may only be used in support of other substantive evidence of guilt of an employee.

Lastly, with regard to the above it is trite law that an employee cannot be forced to take a polygraph test, and he/she must consent thereto in writing and must be informed that: (i) the examinations are voluntary (ii) only questions discussed prior to the examination will be used (iii) employee has the right to have an interpreter or another person present.

Aarninkhof Attorneys have extensive experience in the field of labour law and are available to assist in all your labour related matters.

Address

12th Floor, South African Reserve Bank Building, 60 Street Georges Mall
Cape Town
8001

Telephone

021 424 5212

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