Tag Archives: Contract

Labour Law

WHAT CONSTITUTES A FAIR DISMISSAL?

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A1_BLabour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

What is a dismissal?

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he/she does renew the contract, but on less favourable terms than the employee had reasonably expected.

When is dismissal fair?

Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

What is misconduct?

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations, the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

What is poor performance?

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case, other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore, disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

Operational requirements

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his/her business from being ruined financially.

Conclusion

It is very important that the process contained in section 189 of the Labour Relations Act be followed. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Marriage

VALIDITY OF ANTENUPTIAL CONTRACTS

One must be careful when drafting and signing an Antenuptial Contract. Aside from ensuring that the contents is all correct, one must also ensure that all the necessary provisions are contained therein to make the contract valid. The consequences of neglecting to do so may result in a marriage in community of property even though the parties had no intention of this at the time of their marriage.

Attorneys are often trusted with the task of drafting an Antenuptial Contract. This is a contract, which one signs to regulate the property regime of a marriage. If a couple does not sign, an Antenuptial Contract then the marital property regime will be that of in community of property. The presence of an Antenuptial Contract means that the marital property regime is that of out of community of property and the parties must specifically stipulate whether they would like the accrual system to apply to their marriage or not.

The importance of ensuring that all the necessary provisions are contained in the Antenuptial Contract to result in a valid contract was discussed in the 2014 Supreme Court of Appeal Case of B v B[1]. In this case, no values were stated in respect of any of the assets listed in the Antenuptial Contract and they were also not properly identified. In B v B the court stated that if the terms of a contract are so vague and incoherent as to be incapable of a sensible construction then the contract must be regarded as void for vagueness.[2]

According to Section 6(1) of the Matrimonial Property Act[3] ,a party to an intended marriage which does not, for the purpose of proof of the value of his or her estate at the time of the commencement of the marriage, declare the value in the contract, then he or she may do so within six months of the marriage in a statement attested to by a notary. If this is not done, according to Section 6(4) of the Marital Property Act, the net value of the estate of a spouse is then deemed to be nil at the time of the marriage. In effect, such a contract is valid but it will effectively render the marriage in community of property since nothing was excluded from the accrual.

However, if a contract is contradictory and incoherent in other respects then it cannot be seen as a valid contract since there is no certainty as to the meaning of the contract and what the parties seek to achieve. This means that the contract would not embody terms that would enable to court to give effect to the intention of the parties at the time the contract was concluded.

The result of such a contract is that the Antenuptial Contract would be void for vagueness and that the marital property regime would be the default position according to the Marital Property Act, which is in community of property.

Therefore, parties are encouraged to read their contracts thoroughly and ensure that they understand the terms thereof and that the contract embodies their intentions without any further explanations or evidence.

[1] (952/12) [2014] ZASCA 14 (24 March 2014).

[2] B v B (952/12) [2014] ZASCA 14 (24 March 2014) par 7.

[3] 88 of 1984.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Marriage

A PROMISE TO MARRY

In this article the legal consequences of breaking off an engagement will be discussed. Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?In order to enter into a valid engagement to be married the following requirements must be met:

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before   marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
Cloete v Maritz 2013 (5) SA448 (WCC).
Bull v Taylor 1965 (4) SA 29 (A).
Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.
A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.
Ronald & Bobroff, “The engagement”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.