Legal Articles Archive

Tips for drafting a will:

• Keep your will updated when your life circumstances change, for example a birth or death occurs
• When creating your will, consider who you leave your assets to carefully. Leaving unspecified assets to multiple beneficiaries could lead to issues, for example, fighting over trying to share a house inherited by two people
• If you have children younger than 18, you should appoint someone as their legal guardian in the event of your death
• Create a testamentary trust to protect children younger than 18 who stand to inherent possessions when you die
• Nominate an executor in your will. An executor is the person tasked with the administration of your estate when you die. An executor also assists with the distribution of your assets to the beneficiaries stipulated in your will
• Heirs (the legal inheritors of something) must be clearly identified by full names, surname, relationship and identity number
• Ensure that you understand each clause in the drafted document and that the will accurately reflects your wishes
• You must ensure that each page of the Will, including the last page, is signed by yourself(testator). The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.

Statistics South Africa's latest report for 2018 showed that unemployment rose to 27.2% – that's 6.08 million South Africans sitting without a job. And retrenchments are happening all the time, which is why it's so important to know and understand how the law protects you against unfair treatment from your employer. According to the Labour Relations Act, employers are not allowed to retrench workers without a valid, lawful reason; without consultation and without following a clearly defined process.

If you suspect you've been unfairly retrenched, you can lodge a claim with the CCMA, but you must do this within 30 days of receiving notice of retrenchment from your employer.

Know your rights as a worker so you can strike back legally!

Property is a big expense, whether you're buying or renting. Never trust pictures alone, or what someone else says – you should always go and inspect the property thoroughly yourself.

Here's a short checklist of what to look for before signing any contracts:

There are a number of labour laws and legal bodies that protect your rights as a worker. If you are dealing with labour-related legal matters.

A scam can be defined as an illegal plan for making money, especially one that involves tricking people. In some instances car scams occur when the scam artists portray themselves to be a legitimate company but are actually fraudsters. They trick you into making payment to them in return for the delivery of a vehicle. The vehicle is never delivered and they cannot be contacted on their phone numbers.

Doing your taxes doesn’t have to be hard, even if it's your first time. This is a summary of the basics:

It is your socio-economic right to have shelter and your landlord can't just kick you out, even if you haven't paid your rent. He will have to follow a process of eviction first. This is the process of eviction he must follow:

Customary law in South Africa has been taken into account when it comes to the application of the law to ensure that our cultural diversity is celebrated instead of oppressed. For this purpose, the law recognises the following customary practices:

The Safety at Sports and Recreational Events Act (SASREA) states that the safety and wellbeing of people attending an event lies with the event organisers. Here are some of the responsibilities of the event organisers:

The Consumer Protection Act (CPA) protects the consumer and the store when it comes to returns. You have the right to return broken goods to the store if the store's policy allows it. Here are other options for dealing with an unwanted gift if you cannot return or exchange it:

Be informed about the law surrounding courts in South Africa. South Africa has a variety of courts that hear different cases:

It is important to get paralegal advice when you get any legal documents, or if you need to submit any legal documents. Legal documents include:

Insurance is necessary to protect you, your loved ones and the things you've worked hard to own. But in order to get a payout, you need to make sure you follow the rules, and provide the insurer with everything they need.

The Children's Act of 2005 was written to protect children and to provide guidance to parents, guardians, family members, teachers, and social workers. Although the act is mainly about children, it speaks to the whole public as we are all responsible to look after our children.

Disclaimers are no longer enough to protect event organisers from liability should an attendee get injured at an event. According to the Safety at Sports and Recreational Events Act (SASREA), the safety and well-being of people attending an event lies with the event organisers.

The responsibilities of the event organisers include:

The Labour Relations Act and the Basic Conditions of Employment Act protects your rights in the workplace. From unfair labour practice, to unfair dismissal or discrimination, your labour rights are protected!

Under these laws you have the right to:

It’s important that your employer registers you at the Department of Labour (DOL) for Unemployment Insurance Fund (UIF) and workers’ compensation. If your employer does not do this, it puts you at risk if you were to be dismissed. The Labour Law and the Basic Conditions of Employment Act (BCEA) was written to protect workers in the workplace and to ensure that they are protected against mistreatment and unfair behaviour towards them. If you have a labour issue, the DOL, Labour Court, The Commission for Conciliation, Mediation and Arbitration (CCMA), and other similar institutions can protect you and help you to fight for your rights.

Who can be registered as an employee?
If you work for, or deliver services to another person, regardless of the form of contract, you are considered an employee if one or more of the following applies according to Section 200A of the Labour Relations Act (LRA) and Section 83A of the BCEA:

The South African Criminal Law provides rules and procedures to regulate citizens’ behaviour. If you perform an illegal act, you will be punished for the law that you broke. The Criminal Law doesn’t only regulate citizens’ behaviour, it also protects your rights if you have criminal charges against you, or are guilty of a crime. These rights are explained in the Bill of Rights of the Constitution, as well as the Criminal Procedure Act. A criminal lawyer can protect you and make sure that the sentence fits the crime. If you are guilty of a crime, you will be charged, but with the right defence, the charge can be mitigated or adapted to fit the crime and your existing criminal record, if you have one.
Your rights
Here are some of the rights that you have even if you are guilty:

Insurance is a necessary and unavoidable fact of life. Instead of thinking of it as a grudge purchase, rather see it as investing in the future of your assets.
When taking out insurance, you need to make sure that you understand all the terms and conditions of the contract, and that you fulfil them. If you are going through the terms and conditions, make sure that you understand every point. If you are unsure, ask. It is the insurer’s responsibility to explain the terms and conditions to you in a way that you can understand.

Professional negligence is when a professional person (such as a doctor, builder, architect, or financial advisor) neglects their duty of care. Duty of care refers to the professional person’s legal obligation to ensure the safety or wellbeing of others.

Paying tax can seem like an unnecessary burden to many. Have you ever wondered why you need to give a percentage of your hard-earned money to the government? The answer is really simple: South Africa needs the contributions of its citizens to provide much-needed services such as transport, healthcare, education, welfare, and even our national security. Without the revenue generated by income tax, the government won’t be able to provide these services to the citizens of the republic.

If your employer isn’t treating you, as employee, right, rest assured that you have the Labour Law on your side! South Africa’s Labour Law has been formulated to ensure fair outcomes for both employees and employers. But how familiar are you with your rights as an employee? Let’s look at some of the common issues employees face regarding leave entitlement and unfair discrimination.

As a consumer in South Africa, your rights are protected by the South African Consumer Protection Act (CPA), No 68 of 2008. According to the CPA, you are given the following rights:

The Road Accident Fund (RAF) is there to compensate road users that have been injured, or their families if the accident resulted in death. This fund has been established to benefit all South Africans who use our road, and should be respected and protected by all.

If you know of any fraudulent activity, you should report it. By not reporting fraudulent activity, the fund loses money that could have been given to people who have suffered legitimate loss.

As a Scorpion policyholder, we can assist you in claiming from the RAF if the need ever arise.

Although social media has been around for quite some time, many people still don't realise the potential dangers that may lurk between the status updates and photo shares.

It is possible that you, or someone you know, will face retrenchment sometime in your life. A retrenchment is a no-fault dismissal, in other words, it is not the worker’s fault that they are being dismissed. Retrenchments often occur when the employer makes operational changes such as downsizing.

When retrenched, you will be offered compensation. This is called severance pay, and is calculated at a minimum of one week’s salary for every completed year of work. In other words: if you’ve worked for one year and eight months, you will only receive one week’s worth of pay.

You home is where you go to get away from the world. That is why the law ensures that you can get maximum enjoyment from your property – provided it doesn’t encroach on anyone else’s rights.

There are a various laws that deal with all the possible issues that can cause problems between neighbours. For instance – if a neighbour is making a lot of noise on a regular basis (Noise Nuisance), it is a different case than if he makes a racket once-off (Disturbing Noise). As they say, good fences make good neighbours, so be careful not to encroach onto your neighbour’s property. Similarly, if a branch from your neighbour’s tree hangs into your yard, and it is infringing on the use of your property, or causing damage to your property, you may ask him to cut it down first. If he unreasonably refuses to do so, you may cut off the offending branch of the tree yourself. Just make sure you don’t damage the tree in such a way that it can fall over or die. Although there are many laws governing neighbours, it all comes down to being considerate of those who live around you.

The sensible thing to do is to chat to your neighbour, over a cup of tea, and explain that the dog is preventing your baby from sleeping (or whatever) and ask him or her to do the neighbourly thing. One solution (if the neighbour works all day and the dog is bored or afraid) is to fit a cold air spray bark collar. All vets sell these devices and they are not at all cruel. Perhaps the dog needs to see an animal behaviourist? He or she will see why the dog barks excessively (lack of exercise, lack of stimulation, separation anxiety, protecting territory, etc.) and recommend a solution.

If that does not help or if the neighbour is indifferent or defensive (and refuses to make the nuisance go away) you should report the matter to the authorities (the local authority and, perhaps the SPCA) and, that failing, contact your lawyer, who will have to send a threatening letter or even go to court for an interdict. Disciplinary procedures vary from district to district. If you go the legal route, you will start a feud, so, wherever possible, try and settle matters amicably.

In the Cape, owners may not keep any dog that barks for more than six minutes in any hour or more than three minutes in any half hour. An official may order the owner to take necessary steps to stop the disturbance and owners are required to keep the dog under proper control. Gauteng hasn’t gone that far.

The SA Noise Control Regulations provide that no person shall:

• make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof;
• operate or play, or allow to be operated or played, a radio, television set, drums, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound so as to cause a noise nuisance;
• offer any article for sale by shouting, ringing a bell or making other sounds or by allowing shouting, the ringing of a bell or the making of other sounds in a manner which may cause a noise nuisance;
• allow an animal owned or controlled by him or her to cause a noise nuisance.

If a noise emanating from a building, premises, etc., is a disturbing noise or noise nuisance, the authorities may instruct in writing the person causing such noise to discontinue or cause to be discontinued such noise within a period stipulated in the instruction. Failing response (in the case of e.g. power tools, musical instruments or animal) the instrument, equipment or animal can be confiscated, or impounded.

Any person who contravenes or fails to comply with a written notice shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment. In the case of confiscated items, the court may declare any vehicle, power tool, musical instrument or equipment, or animal forfeit to the local authority.

Written by Roy Bregman

www.roylaw.co.za
Date: 17 June 2014

If you are ever involved in an accident, it is important that you get as much information as possible from all parties involved as well as witnesses. This includes:

• full names;
• ID numbers;
• addresses;
• telephone details; and
• vehicle registration numbers.

Also make sure to get:

• descriptions of the vehicles; and
• details of tow truck personnel.

If possible, take photographs of the following:

• the scene of the accident, from all angles;
• the surrounding area;
• your injuries; and
• any damage to property.

Draw a sketch plan of the scene and make sure that it contains a fixed point so that it can easily be traced.

1. Be careful of people or places promising you big pay outs for low risk investments. This could be a sign it is a scam.
2. Take time before committing to an investment. If you are asked to respond immediately to a “once in a lifetime offer”, then they could be pressurising you on purpose so you do not have time to find out it is a scam. STOP.
3. Do not invest in something you do not understand and never sign contracts or documents you have not read carefully. Watch out for poor grammar and spelling this is a sign it is a scam.
4. Research the company that is calling you. Get their contact details, physical address and try and visit them. A website is not necessarily proof that the company exists and is legitimate.
5. Tell your children, friends, and neighbours, and ask their opinion on the investment you want to make. They might also be able to warn you if they know it is a scam.
6. Keep your private information private. Do not say too much information about yourself or your life situation over the phone. Do not respond to emails, SMSs or phone calls requesting your personal information such as bank details and ID number.
7. Do not respond to emails or SMSs telling you that you have won a lottery or that you’ve inherited millions, and NEVER click on a link asking you to verify account details.

You work hard for your money – make sure that you invest it wisely! There are many people who claim that they can help make you lots of money in a very short time, but not everyone can be trusted.

Here are five warning signs of an investment scam:

1. Promises of quick profits.
2. Offers to share “inside” information.
3. Salesmen who pressure you to invest before you’ve had the chance to investigate their claims.
4. A salesman who discusses a company you’ve never heard of before. Before you invest, check whether or not the company in question is on the Financial Services Board’s fraudulent company alert list by visiting www.fsb.co.za
5. The use of an alias. If someone wants to hide their true identity you need to question the legitimacy of their claims.

This month we are looking at the law surrounding pregnancy in the work place. When finding out that you are expecting a bundle of joy, the last thing you should worry about is how it will affect your work life. Luckily, the Basic Conditions of Employment Act provides for women to grow their families while retaining their jobs. As a female employee, you are entitled to at least four consecutive months of maternity leave. You may take your leave at any time from four weeks before the expected date of birth, or from the date advised by your medical practitioner or midwife to ensure the safety of you and your unborn child. You are not allowed to work for six weeks after giving birth unless your doctor or midwife certifies that you are fit to do so. Should you suffer a miscarriage in your third trimester, or if your child is stillborn, you are still entitled to six weeks’ leave following the birth. Keep an eye on the Scorpion Facebook page for more information on your rights during and after pregnancy!

It’s nearly tax season again! If you earn less than R250 000 per year (or R20 833 per month) from one employer before tax, you don’t have any other income, and you don’t have to claim expenses such as medical aid or retirement annuities, you don’t need to file a return. If you don’t fall into this category, you need to register as a taxpayer and submit a tax return.

Submitting a tax return can seem very intimidating, but luckily Scorpion is there to help our members. We can submit your tax returns for you, as well as help ensure that you are billed correctly. If you have any trouble with your tax return, you can report the issue to Scorpion’s Tax Help Desk who will help you resolve it.

As always, be very careful when giving out your personal details to anyone. There are many tricksters who will do anything to get hold of your money. They love sending mails and SMSs stating that SARS has made a payment to your bank account. Do not click on the links in these communications! Rather type SARS’ verified address (www.sars.gov.za) straight into your browser or call them directly on 0800 00 7277 to find out if you have in fact been paid.

Legally speaking, a contract is an agreement between two or more parties. This agreement has to be entered into voluntarily. A contract lists all the obligations that each party expects the other to fulfil.

A contract can be entered into either through a written document or verbally. When you agree on something, even if nothing is written down, this is seen as a contract, and you can be held legally responsible to uphold your end of the bargain.

It is very important that you do not enter into a contract without knowing exactly what you are agreeing to. If you don’t understand something that is included in a contract, do not sign it. Rather ask a legal counsellor to explain it to you. As a policyholder, you may contact Scorpion to answer any questions you might have around contracts.

The Road Accident Fund (RAF) is a government body set up to compensate people who have been injured due to negligent driving on the road, or the dependents of those people if they were killed. For instance, if you are crossing the road at a pedestrian crossing while the light is green for you and someone hits you with his or her car, you may put in a claim at the RAF. To claim, you will need the following:

• A completed RAF claim form (RAF 1).
• An affidavit with all the details of the accident, including the names of the people involved and time and date it happened.
• Statements of witnesses, if there were any.
• Police reports.
• Hospital and medical reports.
• Documents in support of amounts claimed.

The RAF will then determine if the claim is valid by looking at the seriousness of your injuries, the details of the accident, whether it was submitted on time, etc.

Making a false claim to the RAF is fraud, and can result in imprisonment. If you know of any suspicious RAF-related activities, you can call the Toll-free Tip-off Line: 0800 00 5919.

Did you know that children have special rights when it comes to access to education? According to The SA Schools Act 84 of 1996, learners in public schools have the following rights:

• No learner may be refused admission to a public school on the grounds that his or her parent(s) is unable to pay or has not paid the school fees.
• In addition, no learner may be deprived of his or her right to participate in all aspects of the programme of a public school, despite the non-payment of school fees by his or her parent and may not be victimised in any manner including, but not limited to, the following conduct:
  (a) suspension from classes;
  (b) verbal or non-verbal abuse;
  (c) denial of access to cultural, sporting, social activities of the school or the nutritional program; and
  (d) denial of a school report or transfer certificate.

If you can’t afford school fees, you can apply to the School Governing Body for exemption from paying school fees. There are also no-fee schools where learners can attend classes for free. Private schools are different and don’t have to adhere to the above. However, it’s worthwhile keeping in mind that they cannot withhold reports or transfer certificates, but they are allowed to cancel the contract with the parents if the school fees are in arrears. Educating yourself on the law can help you educate our future.

Do you know your rights when you are suspected of a crime?
Here are some quick tips to staying safe and on the right side of the law:

• After identifying him or herself, a police officer may ask you to show your ID document and to give your full name and address. If the police officer can’t produce proof of identification, you do not need to provide any information. However, if the officer has shown you his or her identification, you have to provide your details.
• You are not required to answer any other questions. You have a Constitutional right to remain silent.
• The police may ask you to go to the police station to make a statement. You may refuse to do so. However, they may then decide to arrest you.
• There are circumstances in which the police can make an arrest without first getting a warrant, for instance if a crime is committed in their presence or if the officer reasonably suspects someone of committing a crime.
• Should you be arrested, the police needs to inform you why they are taking you into custody.
• If you are arrested and asked to give a statement, you only have to provide your full name and address. Remember: everything you say in your statement can be used against you in court. The police may not put pressure on you to make a statement by assaulting or torturing you.
• If you are a Scorpion Legal Protection policyholder, you may choose to give your statement in the presence of your attorney.

Now that the festive season has come to an end, and a lot was said and done, Scorpion feels like it is the perfect time to discuss the law surrounding defamation, especially for those things we wish we shouldn’t have said.

Defamation is the wrongful and intentional act of damaging the good name or reputation of another which may affect their status. Defamation may occur through writing something, saying it or even making gestures in relation to another person which results in their good name being damaged. So basically if you say something bad about somebody else that will result in other people thinking less of that person, then you could have a defamation action against you.

However, proving that someone has defamed you can be difficult. Firstly it has to be published, this means if someone sends you a letter insulting you, and you’re the only one that reads it, then it is not injuring your reputation; but if someone wrote nasty things about you on Facebook or announced it in a room full of people then that can be defamatory. The test is; would a reasonable man in the shoes of the complainant have found the words damaging to his or her reputation or character.

Defamation cases are often very difficult to prove and can take a very long time for the case to be finalized. The payout for injuring another person’s reputation or good name is usually not a large amount. There are also defenses which a person may raise to prove that the words that have been said are not defamatory but the person was provoked into saying those words, that the words were the truth for the public benefit, that the words were a fair comment or were said under a privileged occasion. However if you are a Scorpion policyholder and someone accuses you of defaming them, then Scorpion will cover you.

Retrenchment can happen to anyone, anytime but as an employee you have rights. Your employer must follow correct legal procedure when it comes to retrenchments, and if they don’t, you can strike back.

Retrenchments are called no-fault dismissals; this is because it is not your fault as an employee, that you are being retrenched or dismissed. The reasons for being retrenched are usually economic, which means that the company you are working at can no longer afford to keep paying you. Sometimes the reasons are technological; this means that the company you are working for has a machine that can do your job, so there is no longer a need for you to work there.

It is always advisable to call Scorpion as soon as you hear that you are being retrenched, as employers often use ‘retrenchment’ as a way to fire you for another reason. This must be investigated to ensure it doesn’t happen.

Did you know?

There are two types of retrenchments, large-scale and small-scale. They both have their own procedures to be followed, so contact Scorpion for more information on the differences.

With both small- and large-scale retrenchments, your employer must invite you, or your union, or your work forum to consult in writing, and give you all the relevant information needed. During this consultation you or your union/work forum can:

• Give alternatives to being retrenched
• Talk about ways of minimizing the number of employees being retrenched
• Suggest a change in the timing of the retrenchment
• Propose a method of choosing who gets retrenched
• Agree on severance (you are entitled to at least one week’s pay for every year completed at your company)

Thereafter you or your union/work forum must come to an agreement with your employer on these elements. If no agreement is reached, the employer must use criteria that is fair and objective. To learn more about this topic watch the video interview with Sharusha Moodley.

Note: This is a very basic outline; please contact Scorpion Legal Protection for more details on this topic.

If you lend money to a friend, a neighbor, or even someone from your church, you deserve to get it back. Let Scorpion Legal Protection help you with great legal and practical advice, so that you are not taken advantage of.

Lending money

Lending money to someone means you are giving them money that you want back. The best practical advice we can give, is that you should know and trust the person you are lending to, and never lend more than you are willing to lose. The best paralegal advice we can give is when you lend someone money, make sure that you have a signed written agreement.

This written agreement should include:

• The date you lent the money
• The amount you are lending
• The date the money must be paid back (or dates if you have agreed on being paid in instalments)
• Your name, your signature and the date you signed the agreement
• Confirmation by the borrower that they received the money
• The name of the person you are lending the money to, their signature and the date they signed the agreement
• The name of a reliable witness, their signature and the date they signed the agreement (the reliable witness must be present when the person you lent the money to signs the agreement)

If you make a verbal agreement make sure there is also a reliable witness present, although we strongly suggest you make a written agreement as well.

It is very important to note that you cannot charge interest when you lend money. Only a financial services provider, like a bank, can do this.

Remember: If the amount you lend is less than R12 000, and the person you gave it to does not pay, you can take them to the Small Claims Court. The Small Claims Court is free to the public. You are not allowed legal representation in the Small Claims Court but at Scorpion we advise you to consult with us first before referring to or approaching the Small Claims Court, to fully understand all your rights.

Remember: Don’t wait too late! If the person you lent money to you has not paid you back three years after the agreed pay-back date, the money may be forfeited. This means you may not be able to get it back!

Borrowing money Borrowing means that you are asking someone else for money that you will give back to them at a later date. When you borrow money, remember to get all of the details of the agreement witnessed on paper.

Remember: Always borrow money from registered financial services providers like banks. Borrowing money from micro-lenders that are not registered (also known as loan sharks or Mashonisas) will put you in a very dangerous position. They usually charge very high interest rates and take your bank cards/ID/passport/furniture which is highly illegal and if you cannot pay, they may try to harm you, or your family.

Did you know?

• Before entering into an agreement, you should speak to someone you trust, like Scorpion Legal Protection, about whether borrowing or lending is a good idea.
• During the agreement, get everything you have agreed to written on paper, or witnessed by a person you trust, like a police officer.
• After the agreement has been entered into, make sure you keep all of the documents you have signed safe. If things go wrong, you will need them.

To learn more about this topic watch the video interview with Atish Dahya

Note: This is a very basic outline; please contact Scorpion Legal Protection for more details on this topic.

According to the Featured Lawyer, Sharusha Moodley, Dismissal refers to an employer ending an employee's contract of employment. This is commonly known as "getting fired" or "being let go".

There are several permissible grounds on which an employer can dismiss you. These grounds are divided into three categories:

• Misconduct
• Incapacity
• Operational Requirements

An employer may not dismiss you on grounds of your religion, when you are pregnant, take part in a legal strike or do what is known as whistle blowing. This is known as an Automatic Unfair Dismissal. For more information on Automatically Unfair Dismissals, please contact Scorpion Legal Protection.

Constructive Dismissal is when your employer makes your life unbearable at work and leaves you with no other choice than to resign. It is however important to remember that not all resignations are seen as Constructive Dismissals and that you must follow the correct procedure if you want to claim your resignation as a Constructive Dismissal.

To learn more about dismissal, watch the video interview with Sharusha Moodley and if you think you can claim Constructive Dismissal, make sure that you call Scorpion Legal Protection before you hand in your resignation!

Did you know?

• In the case of an unfair dismissal, the matter must be referred to the CCMA or the Bargaining Council within 30 days of the date of the dismissal.
• An employer cannot dismiss you for refusing to take a lie detector test.
• It is always advisable for an employee to try and sort out problems with the employer or union, before referring the matter to the Department of Labour, Bargaining Council, or CCMA.

Note: This is a very basic outline; please contact Scorpion Legal Protection for more details on this particular topic.