IN THIS ISSUE - SEPTEMBER 2011
"SPLITTING HEIRS" - WILLS AND THE DANGERS OF DISPUTE
"I don't want to achieve immortality through my work. I want to achieve immortality through not dying. I don't want to live on in the hearts of my countrymen. I want to live on in my apartment." (Woody Allen)
Immortality being (currently) beyond our reach, and death sometimes sudden, everyone - young and old - should have a will. Dying "intestate" means forfeiting your rights to choose: -
Who will be the executor of your estate - you owe it to your loved ones to choose someone to wind up your estate with independence, competence and a minimum of delay; and
Who will inherit what assets from you. Again, you owe it to your loved ones to make that choice yourself rather than leave it to the "law of intestate succession" - which would for example typically leave your spouse with only a "child's share" rather than your whole estate.
Have your will professionally drawn. Why? Two recent Supreme Court of Appeal (SCA) cases highlight - in one case - the danger of disputes arising from lack of certainty, and - in the other - the benefits of complying with all the required formalities -
In the first matter, the deceased had made two conflicting wills, six months apart. Because "the golden rule for the interpretation of wills is to ascertain the wishes of the testator from the language used", the SCA (and the High Court before it) had to reconcile the wills by analysing them and then deleting provisions of the first will that were in clear conflict with the later will. The resultant delay, expense and family distress could have been avoided had the second will either expressly revoked and replaced the first one, or clearly and unambiguously amended it.
The second case involved a challenge to the validity of a second will drawn a year after the first. An attempt was made to show that the second will was a forgery on the basis of handwriting expert evidence, but - confirming that courts should "apply caution" before accepting such evidence - the Court upheld the later will. Critically, the deceased had complied with the formal requirement that her signature be witnessed by two witnesses, who were thus able to confirm the "direct evidence" of the attorney who drew the will that the deceased's signature thereon was genuine.
A final note: Diarise to review and update your will regularly!
CONTRACTORS AND DEFECTIVE CONSTRUCTION: WHAT CAN YOU DO?
Where a contractor's work is defective, you must allow him an opportunity to remedy the defects where he is "willing and able" to do so.
So held the Supreme Court of Appeal recently, finding that a contractor, engaged to construct a container depot, was entitled to cancel the contract because it was denied an opportunity to remedy defects in the works. The contractor's cancellation came after the employer held back payment in terms of an interim certificate and instructed the contractor to cease all remedial work, feeling that the method employed to remedy the defects was inadequate.
The employer then claimed damages from the contractor for breach of contract, but its claim failed. The Court held that "where a contractor is willing and able to attend to defects that manifested themselves prior to final completion being reached ………, such contractor cannot be in breach ……… provided he remedies such defects with due skill, diligence, regularity and expedition".
Bear in mind that every case will be different, and that your particular construction contract may have specific terms impacting on disputes over defective work - take advice in doubt!
THE HIV POSITIVE EMPLOYEE AND THE PENALTY FOR DISCRIMINATION AND DISMISSAL
In a case recently before the Labour Court, an HIV positive man was employed, on a temporary basis, as a 'Stable Yard Manager' and horse riding instructor. During his pre-employment interviews he hadn't disclosed his HIV status, allergies and other illnesses, and was summarily dismissed - and forcibly removed from his workplace - when his HIV status and other medical conditions came to the employer's attention. His dismissal was purportedly for misconduct, specifically "fraudulent misrepresentation" based on the non-disclosures.
In awarding the employee compensation of 12 months' remuneration for unfair dismissal, the Court found that: -
The dominant reason for the dismissal was clearly the employee's failure to disclose his HIV status.
Dismissal on the basis of HIV status is "automatically unfair" unless justified on the basis that being HIV-free is an "inherent requirement" of the job.
A prospective employee is "under no legal obligation to disclose his HIV status to his prospective employer and ……… the expectation that he should have so disclosed violates his right to dignity and privacy".
The employee's conduct in not disclosing his HIV status did not constitute a deliberate withholding of information, nor was it motivated by dishonesty or deceit.
Far from being "seriously ill and unable to perform his duties", the employee in fact "had no medical or physical impediment preventing him from performing his duties."
The compensation award reflected "both restitution as well as a punitive element for unfair discrimination on the grounds of HIV status". Had the employee "not been a temporary employee on a three month contract he would have been entitled to the maximum compensation" (24 months' remuneration).
PAIA MANUALS - FINAL DEADLINE LOOMS!
It's six years now since we were all bombarded with warnings to comply with the Promotion of Access to Information Act (PAIA), which requires all public and private bodies to prepare, lodge and publish (including on any website you have) a PAIA information manual.
Then, at the last minute (literally), most smaller businesses were let off the hook - their original deadline of 31 August 2005 was extended until 31 December 2011. At the time, hopes were expressed that small businesses might be exempted altogether.
And of course there might indeed be another last minute extension or exemption. But at the moment it seems most unlikely, so this is an early warning message - don't leave it to the last minute, get your manual together now!
ZONING CONTRAVENTIONS: CAN LONG USAGE MAKE THEM LAWFUL?
If a property has been openly used for decades in contravention of its zoning restrictions, you might think that the local authority has lost its right to enforce the land use restrictions.
Not so. The High Court has made it clear that a statutory body (such as a municipality) does not have the power to waive its duty to enforce zoning laws.
The case in question related to land which, though zoned for agricultural and residential dwelling use only, had for some 25 years been used openly for business purposes. Indeed the whole area had gradually changed in character over a 30 year period, with many other properties having also migrated to business use.
When the municipality eventually applied for an interdict to stop the owner and occupants (an electrical engineering services company and a furniture manufacturer) from continuing to use the premises for business, several defences were raised: -
"Acquiescence waiver" by the municipality
Undue delay in enforcement
Radical changes in the character of the neighbourhood
Selective (and therefore unconstitutional) enforcement.
Commenting that "a local authority as a representative body, cannot waive rights which are entrusted to it for the public benefit", the Court rejected all these defences, and granted the interdict. Even if the municipality had for years failed to enforce the town planning scheme (which it denied), it still had a duty to uphold the law and to enforce it.
The owner and businesses were accordingly ordered to cease operations immediately, with no recourse other than to go through the lengthy and uncertain process of applying for rezoning or consent use. To compound their pain, the Court awarded costs against them on the punitive attorney and client scale.
DRUG REHAB - CAN YOU FORCE IT?
What can you do for a drug addict who, although in urgent need of treatment, refuses to enter rehabilitation?
A matter recently before the High Court provides an example of what not to do. A concerned father, trying to have his daughter (a married adult) admitted to an addiction treatment centre against her will, elected not to follow the statutory procedure for compulsory committal by a magistrate. He argued that the statutory procedure "would be a lengthy process and an urgent order was needed" to avoid her suffering irreparable harm.
He therefore approached the High Court as a matter of urgency, obtaining an interim interdict whereby his daughter was forcibly removed by police to a treatment centre.
However the interdict was set aside on its return date, and legal costs awarded against the father on a punitive scale. The Court's reasoning was that the daughter's constitutional rights (including her right to freedom of movement, her right not to be deprived of personal liberty, and her rights to dignity, privacy and freedom of association) had been violated, and that there was "no legal basis for the applicant to have obtained the order that he did."
As an adult the daughter, said the Court, "is vested in law with full capacity to make decisions on her own behalf, which include the right to determine her own future and more specifically whether or not a particular course of action affecting her well-being is acceptable or not to her".
THE SEPTEMBER WEBSITE: SPRING CLEAN YOUR BUSINESS!
Spring has sprung - time to pump some new life into your business………
For some thoughts on how to go about it, try Business Insider's "Eight Ways to Spring Clean a Business" in its War Room section at www.businessinsider.com.
"I don't want to achieve immortality through my work. I want to achieve immortality through not dying. I don't want to live on in the hearts of my countrymen. I want to live on in my apartment." (Woody Allen)
Immortality being (currently) beyond our reach, and death sometimes sudden, everyone - young and old - should have a will. Dying "intestate" means forfeiting your rights to choose: -
Who will be the executor of your estate - you owe it to your loved ones to choose someone to wind up your estate with independence, competence and a minimum of delay; and
Who will inherit what assets from you. Again, you owe it to your loved ones to make that choice yourself rather than leave it to the "law of intestate succession" - which would for example typically leave your spouse with only a "child's share" rather than your whole estate.
Have your will professionally drawn. Why? Two recent Supreme Court of Appeal (SCA) cases highlight - in one case - the danger of disputes arising from lack of certainty, and - in the other - the benefits of complying with all the required formalities -
In the first matter, the deceased had made two conflicting wills, six months apart. Because "the golden rule for the interpretation of wills is to ascertain the wishes of the testator from the language used", the SCA (and the High Court before it) had to reconcile the wills by analysing them and then deleting provisions of the first will that were in clear conflict with the later will. The resultant delay, expense and family distress could have been avoided had the second will either expressly revoked and replaced the first one, or clearly and unambiguously amended it.
The second case involved a challenge to the validity of a second will drawn a year after the first. An attempt was made to show that the second will was a forgery on the basis of handwriting expert evidence, but - confirming that courts should "apply caution" before accepting such evidence - the Court upheld the later will. Critically, the deceased had complied with the formal requirement that her signature be witnessed by two witnesses, who were thus able to confirm the "direct evidence" of the attorney who drew the will that the deceased's signature thereon was genuine.
A final note: Diarise to review and update your will regularly!
CONTRACTORS AND DEFECTIVE CONSTRUCTION: WHAT CAN YOU DO?
Where a contractor's work is defective, you must allow him an opportunity to remedy the defects where he is "willing and able" to do so.
So held the Supreme Court of Appeal recently, finding that a contractor, engaged to construct a container depot, was entitled to cancel the contract because it was denied an opportunity to remedy defects in the works. The contractor's cancellation came after the employer held back payment in terms of an interim certificate and instructed the contractor to cease all remedial work, feeling that the method employed to remedy the defects was inadequate.
The employer then claimed damages from the contractor for breach of contract, but its claim failed. The Court held that "where a contractor is willing and able to attend to defects that manifested themselves prior to final completion being reached ………, such contractor cannot be in breach ……… provided he remedies such defects with due skill, diligence, regularity and expedition".
Bear in mind that every case will be different, and that your particular construction contract may have specific terms impacting on disputes over defective work - take advice in doubt!
THE HIV POSITIVE EMPLOYEE AND THE PENALTY FOR DISCRIMINATION AND DISMISSAL
In a case recently before the Labour Court, an HIV positive man was employed, on a temporary basis, as a 'Stable Yard Manager' and horse riding instructor. During his pre-employment interviews he hadn't disclosed his HIV status, allergies and other illnesses, and was summarily dismissed - and forcibly removed from his workplace - when his HIV status and other medical conditions came to the employer's attention. His dismissal was purportedly for misconduct, specifically "fraudulent misrepresentation" based on the non-disclosures.
In awarding the employee compensation of 12 months' remuneration for unfair dismissal, the Court found that: -
The dominant reason for the dismissal was clearly the employee's failure to disclose his HIV status.
Dismissal on the basis of HIV status is "automatically unfair" unless justified on the basis that being HIV-free is an "inherent requirement" of the job.
A prospective employee is "under no legal obligation to disclose his HIV status to his prospective employer and ……… the expectation that he should have so disclosed violates his right to dignity and privacy".
The employee's conduct in not disclosing his HIV status did not constitute a deliberate withholding of information, nor was it motivated by dishonesty or deceit.
Far from being "seriously ill and unable to perform his duties", the employee in fact "had no medical or physical impediment preventing him from performing his duties."
The compensation award reflected "both restitution as well as a punitive element for unfair discrimination on the grounds of HIV status". Had the employee "not been a temporary employee on a three month contract he would have been entitled to the maximum compensation" (24 months' remuneration).
PAIA MANUALS - FINAL DEADLINE LOOMS!
It's six years now since we were all bombarded with warnings to comply with the Promotion of Access to Information Act (PAIA), which requires all public and private bodies to prepare, lodge and publish (including on any website you have) a PAIA information manual.
Then, at the last minute (literally), most smaller businesses were let off the hook - their original deadline of 31 August 2005 was extended until 31 December 2011. At the time, hopes were expressed that small businesses might be exempted altogether.
And of course there might indeed be another last minute extension or exemption. But at the moment it seems most unlikely, so this is an early warning message - don't leave it to the last minute, get your manual together now!
ZONING CONTRAVENTIONS: CAN LONG USAGE MAKE THEM LAWFUL?
If a property has been openly used for decades in contravention of its zoning restrictions, you might think that the local authority has lost its right to enforce the land use restrictions.
Not so. The High Court has made it clear that a statutory body (such as a municipality) does not have the power to waive its duty to enforce zoning laws.
The case in question related to land which, though zoned for agricultural and residential dwelling use only, had for some 25 years been used openly for business purposes. Indeed the whole area had gradually changed in character over a 30 year period, with many other properties having also migrated to business use.
When the municipality eventually applied for an interdict to stop the owner and occupants (an electrical engineering services company and a furniture manufacturer) from continuing to use the premises for business, several defences were raised: -
"Acquiescence waiver" by the municipality
Undue delay in enforcement
Radical changes in the character of the neighbourhood
Selective (and therefore unconstitutional) enforcement.
Commenting that "a local authority as a representative body, cannot waive rights which are entrusted to it for the public benefit", the Court rejected all these defences, and granted the interdict. Even if the municipality had for years failed to enforce the town planning scheme (which it denied), it still had a duty to uphold the law and to enforce it.
The owner and businesses were accordingly ordered to cease operations immediately, with no recourse other than to go through the lengthy and uncertain process of applying for rezoning or consent use. To compound their pain, the Court awarded costs against them on the punitive attorney and client scale.
DRUG REHAB - CAN YOU FORCE IT?
What can you do for a drug addict who, although in urgent need of treatment, refuses to enter rehabilitation?
A matter recently before the High Court provides an example of what not to do. A concerned father, trying to have his daughter (a married adult) admitted to an addiction treatment centre against her will, elected not to follow the statutory procedure for compulsory committal by a magistrate. He argued that the statutory procedure "would be a lengthy process and an urgent order was needed" to avoid her suffering irreparable harm.
He therefore approached the High Court as a matter of urgency, obtaining an interim interdict whereby his daughter was forcibly removed by police to a treatment centre.
However the interdict was set aside on its return date, and legal costs awarded against the father on a punitive scale. The Court's reasoning was that the daughter's constitutional rights (including her right to freedom of movement, her right not to be deprived of personal liberty, and her rights to dignity, privacy and freedom of association) had been violated, and that there was "no legal basis for the applicant to have obtained the order that he did."
As an adult the daughter, said the Court, "is vested in law with full capacity to make decisions on her own behalf, which include the right to determine her own future and more specifically whether or not a particular course of action affecting her well-being is acceptable or not to her".
THE SEPTEMBER WEBSITE: SPRING CLEAN YOUR BUSINESS!
Spring has sprung - time to pump some new life into your business………
For some thoughts on how to go about it, try Business Insider's "Eight Ways to Spring Clean a Business" in its War Room section at www.businessinsider.com.
