HJVR Attorneys Inc

16/08/2022

On 28 February 2022, the Minister of Employment and Labour published a draft bill for comment. The new draft bill effectively provides for minor changes to certain sections including definitions of certain individuals. However, the main thrust of the proposed amendments relates to the employment of foreign nationals, the introduction of Digital Labour Platforms and the change in the definition of a private employment agency.

A Digital Labour platform will be considered an employer of the workers if:

1. The Digital Labour Platform determines the payment and/or terms and conditions of the work or services provided; and

2. The Digital Labour Platform remunerates the worker.

Should these provisions be enacted, they shall have far-reaching implications for those businesses falling within the definition of a “Digital Labour Platform” and may result in such platforms gaining “workers” in terms of this Act. Therefore, these businesses would be well advised to prepare for the possible enactment of this draft bill and ensure that they have appropriate contingency plans and measures in place should the bill be passed.

The Employment Services Act was not a well-publicised or commonly referenced piece of legislation, especially when compared to other more common employment legislation, such as the Labour Relations Act or Basic Conditions of Employment Act. However, should the proposed changes be enacted in their current form, the majority of employers may be tasked with the need to familiarise themselves with the ambit and provisions of the Act and may be required to make certain necessary changes to their workplaces as a result.

The draft bill proposes a new section in the Employment Services Act, which is aimed at work or services provided to Digital Labour Platforms.

12/07/2022

"With the increasing occurrence of blended families, we often have clients asking for our legal assistance in adopting their stepchild."

"An adoption order confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent and confers the surname of the adoptive parent on the adopted child."

"The first step in the adoption process is that a notice must be served by the Sheriff on the biological parents and/or guardians requesting consent for the adoption."

Secondly, an interview with a social worker will need to be arranged so that a social worker can compile a report containing information on whether the child can be adopted; if the adoption is in the best interests of the child; medical information in relation to the child; and the eligibility of the prospective stepparent."

"An application for the adoption of a child can be made in the Children’s Court and must be accompanied by the social worker’s report, a letter from the Provincial Head of Social Development recommending the adoption of the child; and it must include all the necessary consent forms."

"The Children’s Court will take the following factors into account when considering adoption; the community, religious and cultural background of the child, the child’s parents, and the prospective parent(s); if the adoption will be in the best interests of the child; and any other relevant information contained in the application."

"Once the Children’s Court has granted the Adoption Order, the order and the child’s birth certificate must be taken to the relevant Home Affairs Office to record the adoption and any change in surname, where applicable."

The first step in the adoption process is that a notice must be served by the Sheriff on the biological parents requesting consent for the adoption.

07/07/2022

"New technology helps us do what we need to do, more efficiently and often at a reduced cost. Part and parcel of using tech is simplifying time consuming and troublesome tasks. One of these so-called “troublesome tasks” is getting stuff signed."

"What was once considered legitimate only if it was in writing, signatures have now gone digital."

"According to Lawahead, a digital signature allows for higher security in remote working environments, thereby increasing productivity of law firms whilst also reducing costs. It can be presented as a handwritten or biometric (digital fingerprint) signature."

3 main benefits of digital signatures:

1. Increased speed of contract finalisation;

2. Enhanced security – contract management software with electronic signing capability can automatically detect even minor altering of a document; and

3. Cost saving – saving money on paper, ink and printer maintenance due to not printing out the contracts, reduced office space as contracts can now be stored in the Cloud.

The benefits of using digital signatures and therefore having this easy to implement tech in your practice far outweigh not having it.

21/06/2022

"Gone are the days where a spousal visa of a foreigner, who has parental responsibilities and rights in South Africa, will expire upon the termination of the spousal relationship which formed the basis of the visa."

"Foreign parents and caregivers of South African children shall now be allowed to remain in South Africa, even after their relationship with their South African spouse has come to an end."
"Prior to the judgment, foreign parents whose relationships with their South African spouses had come to end, were no longer allowed to work or live in South Africa, and were forced to leave the country, or face deportation."
"Honorable Justice Sher remarked as follows:

“In effect, the applicants have the Hobson’s choice of either breaking the law by continuing to live and work in the country in order to maintain their parental responsibilities and relationships and contact with their children, or to uphold the law by leaving the country, thereby breaching their parental duties and severing their contact and relationships with their children.”

"This is a welcomed solution to avoid a South Africa which is overburdened with children who are destitute and need to be provided for at state expense, as a result of the absence of one or both of their parents, a situation which is beyond their control."



https://www.golegal.co.za/spousal-visa-unconstitutional/

15/06/2022

"In contracts, warranties are typically supported by an indemnity to reimburse the other party in case of a breach. This is also where indemnity insurance policies would play a pivotal role. So, what are the limitations of these warranty and indemnity clauses in contracts and insurance policies?"

"In a recent case in the Western Cape High Court, of EBS International (Pty) Limited and Another v Shaun Edward Wright, this principle came under the spotlight."

"An indemnity is a contractual agreement between two parties where one agrees to pay for potential losses or damages claimed by a third party"

Facts:

"The shareholder director had furnished warranties and indemnities to the buyer of the business to the extent that he would make good any undisclosed tax liabilities that came to light after the conclusion of the sale agreement. It included the cost of a claim for a breach of the warranty set out in the contract of sale.

Some years after the sale, the tax authorities assessed the affairs of the business. Under the appropriate tax legislation, once an assessment is raised by the Receiver of Revenue (SARS), it is deemed to be conclusive in terms of liability."

Law:

"The question was whether the buyer had a claim for specific performance as a direct result of the breach of warranties. The court held that where a breach of a warranty has been indemnified, the injured parties’ claim is not based on the breach of the warranty but on the indemnity clause itself. Therefore, the court said that the buyer had met the requirements for a claim for specific performance.

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https://www.golegal.co.za/warranties-agreements-accountable/

09/06/2022

"Telemarketers constantly inundate me with calls. Is this an offence?

The Protection of Personal Information Act (POPIA) doesn’t protect you from marketers who contact you telephonically unless you explicitly tell them to stop calling you."

"Section 69 of POPIA deals with processing your personal information without your consent. You must consent to direct marketing using any form of electronic communication."

"The section does not explicitly include phone marketing in its definition of unsolicited electronic communication. A telephone is not an electronic communications device."

"So, telemarketers may call you and ask you to consent to the call and the sales pitch. If you object, they may not contact you again."

Telemarketers may call you and ask you to consent to the call and the sales pitch. However, if you object, they may not contact you again.

06/06/2022

"Lifting the corporate veil entails ignoring the distinction between the company and the natural person behind it and will happen where it is shown that the natural person has abused the corporate personality of the corporate entity."

"Section 20(9) of the Companies Act 71 of 2008 is the statutory basis for piercing the corporate veil, requiring an unconscionable abuse of the company’s juristic personality."

"Case law shows that where controllers of companies use the companies for improper purpose, and in that process, treat the entity such that there is no distinction between the separate juristic personality of the entity and those controlling it, that would constitute the required unconscionable abuse."

The Companies Act is the statutory basis for piercing the corporate veil, requiring an unconscionable abuse of the company’s juristic personality.

30/05/2022

We can draft any contract that you or your company may need. We can also assist you with any contractual dispute you may be facing.

DO NOT HESISTATE TO CONTACT US TODAY.

012 012 5915 or [email protected]

24/05/2022

Call us today or email us:

We can assist you with registering a new company; and we can assist in amending the current directors of your company.

23/05/2022

"The Companies Act 71 of 2008, as amended (“Companies Act”), provides for the protection of minority shareholders’ rights."

"There is no rule of law that caters explicitly to the removal of a shareholder, and a shareholder may not be forced to sell or forego its shares."

"A forfeiture of shares may be included as a penalty mechanism in a shareholders’ agreement. Although a very aggressive mechanism, it is linked to non-performance in contributing to the funding requirements of the company or not reaching an agreed milestone and is not a typical inclusion."

"A share sale or share buyback agreement could also result, either between the shareholders or with the company being the buyer of the shares. However, it requires a willing buyer and seller to engage on this level."

"Navigating the above-mentioned agreements can be tricky and it is important that the agreement provides for the accountability of all shareholders, especially minority shareholders. In addition, it is important to ensure that these agreements are properly drawn up with the Companies Act."

CONTACT US TODAY TO ASSIST YOU WITH YOUR COMPANY:

012 012 5915 or [email protected]

Section 163 of the Companies Act allows for a minority shareholder to apply to a court for relief should he/she feel oppressed or unfairly prejudiced.

20/05/2022

FACT FRIDAY!!!!!!!!

If you are unable to sign your Will, maybe due to illness for example, you can make a mark on the Will. However, it must be in front of a commissioner of oaths and they must certify that it is you in fact and it is your Will.

18/05/2022

"On 11 May 2022 the Pretoria High Court declared that Section 7(3)(a) of the Divorce Act, 70 of 1979, is inconsistent with the Constitution and invalid."

"Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract."

"It should, however, be kept in mind that such a redistribution claim is not an automatic entitlement. A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful."

"The relief granted in the application will have far reaching consequences on the patrimonial consequences of many marriages. The outcome of the application is as such of significant importance to the South African society at large."

Contact us today to assist you with your choice of marital regime.

012 012 5915 or [email protected]

The Pretoria High Court declared that Section 7(3)(a) of the Divorce Act, 70 of 1979, is inconsistent with the Constitution and invalid.