Surviving BEE-Transformation-ANC Kleptocracy

We are constantly bombarded with negative press regarding the state of the South African economy as well as our ability to survive in a changing environment.

Are you in the process of slowly going out of business, or have you developed a strategy that will enable your survival.

McLarens Attorneys can assist you with the Tools necessary to ensure your survival. We have a comprehensive understanding of the current BEE and empowerment structures that will ensure your survival.

If you wish to be a survivor and not a victim contact us before it is too late.

Ian McLaren

Constructive Dismissal

Constructive dismissal occurs when an Employee resigns from their Employer and claims that the resignation has occurred as a result of the Employer’s intolerable and unbearable conduct, workplace, or working conditions. The word ‘constructive’ refers to something that was created or induced and in this context a constructive dismissal means that the Employee’s resignation was coerced by the Employer by some or other reason and was not a voluntary decision by the Employee.

 

Section 186 (1) (e) of the Labour Relations Act defines a constructive dismissal as a dismissal in terms of which “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.

 

If your Employer has made continued employment intolerable or unbearable you may have a case of constructive dismissal, however to succeed with such a case an Employee will have to prove that:

 

  • The employment circumstances and situation was so intolerable and unbearable that the Employee could not be expected to continue and stay employed.

 

  • The unbearable circumstances and situation was the direct cause of the resignation and there was no reasonable alternative at the time other than to resign and leave employment.

 

  • The unbearable circumstances and situation was caused the Employer and the Employee did not do anything to contribute to the situation.

 

  • The Employer must have been in control of and aware of the unbearable circumstances and failed to remedy the situation correctly.

 

It is important to note that the onus of proof in constructive dismissal cases is extremely high and to succeed with a case of constructive dismissal an Employee will have to show and prove that he/she has exhausted all alternatives before resigning and he/she has made his/her Employer aware of the situation and has given the Employer an opportunity to remedy the situation, similar to a breach of contract which in this context would be an Employers duty not to treat the employee unfairly or subject an employee to unreasonable and unfair working conditions.

 

In the case of Mvamelo vs AMG Engineering an Employee was informed that he was to face a disciplinary hearing for theft and criminal charges would also be laid against him. The resigned and claimed constructive dismissal, however lost the case because it was found by the Arbitrator that he had resigned to avoid the disciplinary action. However, in the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd an Employee was found to have been performing his work poorly and as a result the Employer stopped paying him a salary and replaced it with a commission structure. The Employee resigned and succeeded with his constructive dismissal claim wherein it was found that the Employee could not be expected to continue employment under such intolerable circumstances.

If an employee did not first attempt to address the situation by, for example, filing a formal grievance or approaching his or her shop steward, bargaining council or the department of labour, then the employee’s resignation would be per se unreasonable and will not serve as the basis of a constructive dismissal case. In such event the employee will be held to have resigned under no undue influence and of his own accord and the Employer would be under no obligation to take this employee back.

 

It is with the above in mind that Employee’s must be careful and ensure that they raise any issues with their Employer and allow their Employer to remedy the situation before resigning and claiming constructive dismissal. It is also important that Employer’s not discipline or treat their Employees unfairly, and deal with grievances or allegations of unfair labour practice as soon as they arise.

 

Warren Sundstrom

 

SAME-SEX RELATIONSHIPS, MARRIAGE AND INHERITANCE

On 30 November 2006 South Africa became the fifth nation to allow gay or lesbian couples to marry by promulgating the Civil Unions Act, 17 of 2006, which now entitles same-sex couples to conclude civil marriages or unions in South Africa.

The Civil Unions Act defines a “civil union” as meaning “the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others”.

The legal consequences of a civil union in terms of the Civil Unions Act are stipulated as being the same as those of a marriage contemplated in the Marriage Act apply.

With the exception of the Marriage Act and the Customary Marriages Act, any reference in any other law, including the common law, to a husband, wife or spouse in any other law, includes a civil union partner, and any reference to a marriage includes a civil union.

Prior to the promulgation of the Civil Unions Act, on 23 November 2006, the Constitutional Court handed down its judgment in Gory v Kolver and extended the definition of a “spouse” as contained in the Intestate Succession Act, 81 of 1987, to include same-sex partners, even if the partnership was not formalised by marriage. When someone dies and does not leave a valid will‚ the Intestate Succession Act applies and divides a deceased’s estate between family members and spouses.

In effect the decision in Gory v Kolver amended the Intestate Succession Act before the Civil Unions Act was promulgated.

Ten years later, on 29 November 2016, the Constitutional Court handed down another judgment in Laubscher N.O. v Duplan and Another. In this judgment the court held that the promulgation of the Civil Unions Act did not have the effect of amending the provisions of the Intestate Succession Act. In this case the Constitutional Court had to determine whether a surviving same sex partner with whom the deceased lived in a permanent same-sex partnership‚ was entitled to inherit from the intestate estate of the deceased. At the time of the deceased’s death the same-sex couple had not concluded or formalised any civil union and the deceased did not leave a will.

In a majority judgment‚ the Constitutional Court ruled that “….same sex partners will continue to enjoy intestate succession rights under Section 1 (1) of Intestate Succession Act‚ as per the Gory order until such time that the Legislature specifically amends the section”.

In conclusion same-sex partners have the right to:

  • Legally conclude a marriage or civil union;

and

  • Inherit as a spouse would if their partner does not leave a valid will, even in the event that the same-sex couple had not concluded a marriage or civil union, until new legislation is passed to address the issue.

Nuno Palmeira

SURROGATE MOTHERHOOD – A LEGAL PROSPECT

Throughout human history people who have been unable to conceive a child themselves have often relied on other women to bear a child for them to raise. This practice is called surrogacy and was first allowed as a legal practice in Babylonian Law.

While surrogacy is widely accepted and practiced internationally, surrogacy did not formally form part of South African law and was largely unregulated prior to the promulgation of the Children’s Act.

As of 1 April 2010 surrogate motherhood is legally enforceable in South Africa and recently the High Courts in the United Kingdom have granted parental orders in favour of parties who have had children born in South Africa through surrogate motherhood agreements.

WHAT IS A SURROGATE MOTHERHOOD AGREEMENT?

The Children’s Act defines a surrogacy agreement as an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent.

The surrogacy agreement is intended to vest the commissioning parent(s) with parental rights and responsibilities in respect of the child to be born and also results in the surrogate mother losing any rights and responsibilities in respect of the child.

WHEN IS A SURROGATE MOTHERHOOD AGREEMENT VALID:

To be valid a surrogate motherhood agreement:

  1. The agreement must be in writing and entered into in the Republic of South Africa;
  2. At least 1 (one) of the commissioning parents, the surrogate mother and her partner/husband must be domiciled in the Republic of South Africa at the time the agreement is entered into; and
  3. Must be confirmed by the High Court of South Africa.

WHEN WILL THE HIGH COURT CONFIRM A SURROGATE MOTHERHOOD AGREEMENT:

The High Court may not confirm a surrogate motherhood agreement unless:

  1. At least 1 (one) of the commissioning parents are unable to give birth to a child and the condition is permanent and irreversible;
  2. The commissioning parent(s) have the legal capacity to enter into the agreement, are suitable persons to accept the parenthood of the child to be conceived, and fully understand and accept the legal consequences of the agreement;
  3. The surrogate mother has the legal capacity to enter into the agreement, is suitable to be a surrogate mother, has a history of at least 1 (one) pregnancy and birth of a living child of her own, has entered the agreement for altruistic reason and not for commercial purposes;
  4. The agreement must contain suitable provisions in respect of the contact, care, upbringing and general welfare of the child to be born;
  5. Having regard to the personal circumstances and family situations, It would be in the best interests of the child to be born for the agreement to be confirmed.

WHAT IS AN ALTRUISTIC REASON TO ENTER INTO THE AGREEMENT:

The Children’s Act prohibits surrogate mothers from entering into the agreement as a source of income and prohibits the agreement being concluded for any commercial purposes.

The surrogate mother must enter the agreement for unselfish reasons to help the commission parents and can receive no remuneration for doing so.

A surrogate mother however is entitled to receive compensation for any expenses she incurs, as well as any loss of income she suffers, as a result of the pregnancy and/or birth of the child.

CONCLUSION

Surrogate motherhood is a viable and legal option to becoming a parent in South Africa, provided the process is properly structured and implemented in terms of the Children’s Act.

Nuno Palmeira