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RHM Attorneys, The Terrace, Kings Park Medical Suites, Lion Match Office Park, 892 Umgeni Road, Durban (2026)

16/04/2020

The second surprise reduction in the repo rate by a further 100 basis points is good news for property owners with bonds and provides some relief to them. This is also a very good time to acquire property and take advantage of the reduced rates offered. We know that the lockdown has affected all, but the situation will normalize at some point and we have to take the good news where we can at the moment! Feel free to contact us should you need clarity on the above.
RHM ATTORNEYS
Cell and whatsapp: 0729159930

21/03/2020

The Effect of COVID 19 on the South African Employer and Employee Relationship
The reality is that COVID 19 whilst still in its infancy is about to have a devastating effect on us all and is going to impact the employment relationship in South Africa drastically. Notwithstanding the fears and panic associated with the virus South African as well as foreign businesses conducting trade within South Africa employing any part of the work force are required to ensure that the laws relating to the employee/employer relationship are still abided by. That being said, and taking cognizance of the fact that this virus has now been declared a national emergency labour laws could possibly be relaxed by agreement between the Employer and Employer. Furthermore, Employee contractual obligations could be waived, and indulgences granted by the Employer so that the spread of the Virus does not affect an Employee’s income or an Employer’s revenue as far as reasonably possible during this time.
Implementation of Health and Safety Measures in the Workplace
Employers need to ensure compliance with the rules and regulations of the Occupational Health and Safety Act 85 of 1993 (“the OHSA”) by following the Act to its full extent so that they avoid potential claims by Employees and fines imposed on the Employer at a later stage. The OHSA states that an Employer must ensure that its working environment is safe and without risk to the health of its Employees. Further, we would suggest that over and above complying with the rules and regulations of OHSA, Employers ought to adopt contingency plans or alternative working arrangements for Employees by consulting with its Employees about the Virus and communicating with its Employees regarding the measures that will be put in place to secure the working environment against the infiltration and spread of the Virus and reducing or eliminating the risk of its Employees becoming infected.
Short Term Alternative Working Arrangements
Apart from the option of a blanket shutdown of operations other preventative measures the Employer can consider is to allow Employees to work from home if this is a viable option for the business. However, it must be noted that if Employees are instructed to work from home then they are still entitled to their full remuneration and benefits as if they were working in the office or on-site as per the norm. On the the other hand, if an Employee is in a state of panic and is afraid and refuses to attend at work for fear of contracting the Virus and they have not been granted permission to work from home, the Employer should consult with the Employee via phone and allow the Employee to record their concerns before making decisions to dismiss the Employee for being absent without leave or abandoning the employment relationship. The Employer, in these circumstances and to avoid unfair dismissal disputes at a later stage, could offer unpaid leave, annual leave or agree to remote working conditions on a case by case basis.
Conclusion
At the end of the day the nature of the employer/employee relationship is still governed by the laws applicable and any contracts that are in place and the duties and obligations imposed by both of the aforesaid remain unchanged.

In addition to the above, we suggest that the WHO recommendations for the workplace be followed with immediate effect. These recommendations can be found online at

15/02/2020

We have all been a victim of it at least once in our life. Most of us have encountered it directly and as a show of actual physical force. And it comes in many shapes and forms. Commonly, we know it as bullying. However, modern times present modern forms of an age old “psychosis”. Now bullying can be done remotely and in a day of advanced technology has been labeled as “cyber bullying”.

But the time has come to deal with this offensive behavior and the responsibility rests on all of us to know our rights. Cyber bullying now has its own consequences and like normal bullying carries certain penalties. In South Africa one can report cyber bullying to the police and prefer criminal charges against the perpetrator for cyber bullying on the following bases:
• Crimen Iniuria which consists of the unlawful, intentional and serious violation of dignity or privacy of another person.
• Assault on the basis that any unlawful and intentional act or omission has resulted in another person’s bodily integrity being directly or indirectly impaired or inspires a belief or fear in another person that such impairment will be carried out.
• Criminal Defamation which is premised by the unlawful and intentional publication of a matter concerning another, which tends to seriously injure his or her reputation. This includes both verbal or written defamation and in certain extreme instances
• Extortion where a person unlawfully and intentionally obtains some advantage, which may be of either a patrimonial or non–patrimonial nature, from another, by subjecting the latter to pressure, which induces him or her to hand over the advantage.

Finally, on a civil basis, a victim can now approach a court of law in terms of the Protection from Harassment Act No. 17 of 2011.

For more information contact RHM ATTORNEYS on 082 932 0214 or on email at [email protected]

We specialize in dealing with matters involving cyber bullying.

13/02/2020

Today marks 20 years of a matter that brought much joy to our firm and put into focus why we do what we do as a law firm. It is always a challenge when big business, especially insurance companies, take advantage of the ordinary citizen. To sum up the matter, it dealt with what was then a fledgling field of law surrounding insurance cover for an individual who had insurance cover but had that cover declined when she passed on, on the basis that her HIV status was grounds for rejecting her families claim for life cover. It was very gratifying for us to experience the joy of the family members when an order directing the insurance company to pay out the benefit was secured in the high court.

26/06/2017

MARITAL REGIMES: EDUCATE YOURSELF BEFORE YOU SAY “I DO”

Are you planning your big day?

What follows is Part 2 of a very brief three part summation of the various marital regimes that are allowed and recognised by law and is not to be taken as legal advice under any circumstances.

PART TWO

An ante-nuptial contract would be part of those plans in a marriage out of community of property, and it would be one of the most important documents you will ever sign in your lifetime. The purpose of an ante-nuptial contract is to govern what happens to your assets and liabilities in the unlikely event of death or divorce.

ANTENUPTIAL CONTRACT WITH ACCRUAL:

The accrual system is designed to share the assets that are built up during the marriage. This means that each spouse is entitled to take out the asset value that he or she brought into the marriage and thereafter they share what they have built up together during the subsistence of their marriage. It follows that when a spouse becomes insolvent, the property of the other spouse cannot be sold to pay the spouse’s creditors.

It is of further importance to note that any party wishing to enter into an ante-nuptial agreement must fully understand what they are signing. Essentially, an accrual marriage is one where each spouse retains his/her own estate. Each spouse may accumulate assets and incur liabilities without interference from or assistance from the other spouse and the estate of each spouse is determinable separately.

The accrual is calculated by subtracting the monetary value of the smaller estate from the monetary value of the larger estate. The difference between these values are then split and the party that has the larger estate pays half of the difference between the two estates to the party with the smaller estate.

Upon the dissolution of the marriage, the estate of each spouse is calculated by listing all assets and liabilities, then subtracting the liabilities from the assets to receive a net asset value.

When drafting an ante-nuptial contract, parties to the contract may choose to exclude certain assets.

ANTENUPTIAL CONTRACT EXCLUDING ACCRUAL:

This type of agreement relates specifically to the instance where certain assets do not form part of the accrual system whatsoever. For example certain property belonging to either spouse may not be taken into account when calculating accrual such as any damages awarded to either spouse for pain and suffering or defamation, inheritances, gifts or legacies.

Any ante-nuptial contract must be signed before the marriage takes place and is done in the presence of a notary and two competent witnesses. The notary will then register the ante-nuptial contract with the Registrar of Deeds.

(Part 3 will follow in due course and deal with other marital regimes.)

05/06/2017

MARITAL REGIMES: EDUCATE YOURSELF BEFORE YOU SAY “I DO”

Are you planning your big day?

What follows in this article is a very brief three part summation of the various marital regimes that are allowed and recognised by law and is not to be taken as legal advice under any circumstances.

PART ONE

MARRIAGE IN COMMUNITY OF PROPERTY:

If you do not conclude an ante-nuptial agreement before the date of your marriage, the default position is that you are then automatically deemed to be married in community of property.

This would then mean that all your assets and liabilities acquired before and during the said marriage forms a joint estate in which the spouses have an equal and undivided share.

Upon dissolution of the marriage, the husband and wife are each entitled to a half-share of the joint estate. Further, both spouses are jointly liable for any debts of the joint estate.

One of the major disadvantages is that should any one of the spouses become insolvent, then the assets of the joint estate will form part of the insolvent estate for distribution of any liablities proved, unless it can be shown that the particular asset/s do not form part of the joint estate and may be excluded.

MARRIAGE OUT OF COMMUNITY OF PROPERTY:

In this instance, each spouse will retain their assets and liabilities whether acquired before or during the marriage and there is no sharing of profits and losses. Both spouses can enter into contracts without seeking the permission of the other spouse. Upon death or divorce, each spouse keeps control over their own assets. The advantage of this is that each of the spouse’s estate is protected against claims by the other spouse’s creditors, save for the instance where one spouse signs as surety in favour of the other spouse.

(Part 2 and Part 3 which will deal with other marital regimes will follow in due course.)

02/06/2017

FACING RETRENCHMENT?
HERE’S BRIEFLY WHAT YOU NEED TO KNOW

With the pervading downward spiral of the South African economy the employment arena is facing some severe challenges and possibly a state of crisis. The possibility exists that any one of us may be faced with retrenchment as an employee or have to implement retrenchment measures as an employer.

The Labour Relations Act sets out certain procedures that has to be followed by an employer before retrenchment is effected. What follows in this article is a very brief summation of those procedures and is not to be taken as legal advice in any circumstances.

The onus rests on the employer to establish a genuine and valid reason for the retrenchment of staff and must further be able to show that the decision for retrenchment was arrived at fairly. The procedure set out by the Labour Relations Act must be properly followed in good faith by the employer.

Before implementing retrenchment, the employer must give written notice to its employees that it is considering retrenchment and in such notice, it must state:

1. The reasons for the possible retrenchment;
2. Alternatives that have been considered and why such alternatives has been rejected;
3. The number of staff likely to be affected and their job categories;
4. The methods used to select the workers who will be retrenched;
5. The time when or period during which the dismissals are likely to be effected;
6. The severance pay proposed;
7. Any proposed assistance to be offered to employees;
8. The number of employees in the company; and
9. The number of employees retrenched because of operational requirements in the last 12 months.

Once written notice is given, the employer will have to engage in consultations with the employees or their respective union representative, which is known as the consensus-seeking process. This is to attempt to avoid dismissals and to possibly reach consensus on the following:

1. The appropriate measures to avoid dismissals or to minimise the number of dismissals or to change the timing of the dismissals and/or to mitigate the adverse effects of the dismissals;
2. The method for selecting the employees to be dismissed; and
3. The severance pay for dismissed employees.

These are just some of the basic important information that you need to know about retrenchment and the procedures required. To find out more you may email us at [email protected]

RHM Attorneys

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