BUCHANAN S (PDF) by liuhongmei


                                                                                                              AUGUST 2011 | ISSUE 02

                                        onLine sHoPPinG

                                       WHAt ARe My RiGHts
         SME’s and the new
          Companies Act
                                       As A ConsUMeR?                                                                       by Allan White

                                       You will no doubt be aware that the Consumer Protection Act came
            Insurance                  into operation on 1 April 2011 and will have a far reaching influence on
                  ‚                    how businesses trade and transact with their customers.

          Casual Employee                   ou may not be aware, however, of the fact that        Members of the public who have been following
             Contracts                      the Electronic Communications and Transactions     the progress of the Consumer Protection Act will
                  ‚                    Act No. 25 of 2002 introduced important measures to     have heard that there are provisions which allow
                                       protect consumers who transact with suppliers online.   a consumer to “cool off” from a transaction where
           Common Area
                                                                                               the sale resulted from direct marketing of goods or
                                         Some of these consumer rights are:                    services.
                  ‚                                                                               In terms of the Electronic Communications and
                                       ‚‚ right to information about the webtrader, its
          Tax Amnesty for                                                                      Transactions Act where goods or services are ordered
                                        goods and services and its standard terms and
          Property Owners                                                                      over the Internet, a consumer may without reason
                                        conditions of sale;
                                                                                               and penalty terminate the contract within 7 (seven)
                                       ‚‚ right to withdraw from the agreement entered
                                        the                                                    days of receipt of the goods or within 7 (seven) days
                                        into without reasons i.e. a cooling-off period;        of concluding a contract for services (Section 44 of
                                                                                               the Act).
                                       ‚‚ right to protection against spam i.e. unsolicited
                                                                                                  The only cost implication to the consumer is that
                                        marketing material; and
                                                                                               he/she is responsible for the cost of returning the
                                       ‚‚ right to prompt performance or delivery of the
                                        the                                                    goods to the online webtrader.
                                        service or goods which have been purchased.
                                                                                                                                    Continued on page 2

Buchanan’s Brief | Issue 02 | Page 1
                                          There are, however, a number of listed transactions     Therefore ANY trading website must have:
                                       which are not subject to the “cooling-off” period and
                                                                                                ‚‚ names and legal status of the webtrader
                                       these include:
                                                                                                 including registration number and office bearers;
                                        transactions for financial services;
                                                                                                 physical and email addresses as well as contact
                                        online auctions;                                         numbers of the webtrader;

                                        transactions for foodstuffs and consumables;            ‚‚
                                                                                                 details of the webtrader’s affiliation to any
                                                                                                 professional or self regulatory body;
                                        transactions where the price for the goods
                                        fluctuate;                                              ‚‚
                                                                                                 details of any code of conduct to which the trader
                                        where goods are made to order or personalised;
                                                                                                ‚‚sufficiently detailed description of the goods/
                                        where the consumer broke the seal on audio/
                                                                                                 services being sold;
                                        video/computer goods;
                                                                                                ‚‚ full price payable for the goods or services,
                                        transactions for the sale of books and magazines;
                                                                                                 including transport costs or taxes;
                                                                                                ‚‚ terms of the agreement;
                                        transactions for the provision of accommodation,
                                        transport or leisure services where the contract has    ‚‚ time within which the goods will be dispatched
                                        specified a date or period of time.                      or delivered or within which the services will be
                                          Section 43 of the Act also requires webtraders         rendered;
                                       to supply information on their websites which, if not    ‚‚ manner in which a consumer can access and
                                       provided, gives the consumer a right to cancel the        maintain a full record of the transaction;
                                       agreement within 14 (fourteen) days of receiving
                                       goods or services. This is to ensure that a consumer     ‚‚ return, exchange and refund policy of the trader
                                       interacting with a webtrader is given full information    must be clearly stated;
                                       about the identity of the webtrader, the nature          ‚‚ webtrader’s security and privacy procedures;
                                       of the goods and services, the agreement and
                                       the consumer’s rights in terms of the Electronic         ‚‚ termination procedure where an ongoing
                                       Communications and Transactions Act.                      service is contracted for; and

                                                                                                ‚‚disclosure of the consumer’s rights in terms of
                                                                                                 Section 44 of the Act i.e. the “cooling-off” provision
                                                                                                 discussed above.

                                                                                                   The failure by a webtrader to supply any of the
                                                                                                information can entitle a consumer to terminate the
                                                                                                agreement within 14 (fourteen) days of receiving the
                                                                                                goods which may then be returned to the trader at
                                                                                                the cost of the consumer. The webtrader will have to
                                                                                                refund all payments made by the consumer.

                                                                                                Professional advice is a must for anybody
                                                                                                investigating the possibilities of establishing an
                                                                                                online business. If you need assistance, please
                                                                                                contact Allan White at allanw@stbb.co.za or go
                                                                                                to our website at www.stbb.co.za

Page 2 | Buchanan’s Brief | Issue 02
Honesty, certainly
the best policy by Cris Riego de Dios

W        hen I meet new people, I am often asked the
         question: ‘What type of lawyer are you? My
stock answer is: “An honest one!’ This usually brings
                                                               driver of the offending car. This I began in earnest as
                                                               he maintained that he was not remotely in the area
                                                               at the time. I confronted him with the eye witness
about an array of laughter varying from surprise to            accounts where several children had shouted to or at
incredulous.                                                   him: “Teach! Teach!” (He was a teacher in the area). I
    There is some generic belief in the public,                then saw his nervousness at this line of questioning. I
unsubstantiated I say, about lawyers and their integrity,      pressed on...
or lack thereof. No doubt that not all lawyers are                The Defendant suddenly became ‘forgetful’
without fault – we are human and far from iconic               of certain facts of his whereabouts, began to be
perfection.                                                    argumentative and avoided basic questions. I
    Honesty is, however, a requisite in the realm of a trial   continued on this vein of cross examination when I
lawyer, and in particular from your client.                    faced his utmost frustration as he blurted out: “...it was
    I recall a ‘crash and bash’ matter that I was              my twin brother who was driving the car....but he is now
conducting a few years back in the Mdantsane                   dead!” The entire courtroom fell silent for what felt like
Magistrate’s Court, right in the heart of the former           an eternity.
independent homeland, Ciskei. The facts were pretty               “So,” I said, “the driver of your car was actually your
simple in that I acted for the Plaintiff whose car had         twin brother who has since died?” “Yes,” he answered
been ‘bashed’ by the Defendant’s car, which was                mutely.
driven by the Defendant himself. The defence was also             I continued: “But this is the first time we have been
simple: ‘It was not me, I did not drive the car, nor was       advised of this. Why did you not tell your attorney or
it mine’.                                                      place this fact in your court papers?” Only silence.
    The difficulty here was that my client was driving            I glanced over to my opposing attorney who looked
alone, and was injured as a result of the crash. He was        absolutely dumbfounded and shattered by this
unable to properly identify the Defendant as the driver        revelation. The magistrate had a look of bemusement.
of the offending car as the perpetrator had run away              I carried on with a few other questions and quickly
shortly after the incident. We relied on secondary eye         ended my cross examination. My opponent did not re-
witness accounts for identification.                           examine his client and thereafter proceeded to close
    My client’s evidence was presented to the Court            the Defendant’s case.
without much drama, and surprisingly with only a                  Needless to say, the Court found in my client’s
cursory cross examination from my opposing attorney.           favour; not however a credit to any of my skills as
    As luck would have it, we ascertained that the             an attorney, but the sheer result of mendacity of
vehicle was registered to the Defendant and this was           the Defendant. My final vision of the Defendant’s
eventually conceded at the trial. One hurdle crossed!          attorney was of him talking sternly to his client in

    At this point I was beginning to feel a little             the passageway and pointing his finger in a sort of
concerned that our case was pretty smooth, in fact, too        ‘headmasterly’ type pose.                                            The Defendant
smooth. I was therefore interested to hear the version            This matter leaves me to recall the words of one            suddenly became
of the Defendant during his oral evidence as he did            singer, songwriter and poet:                                   ‘forgetful’ of
not disclose much prior to this time. As expected, it             “Honesty,                                                   certain facts of his
was a complete denial of the remainder of my client’s              is such a lonely word,                                     whereabouts, began
averments. So, my legal mind said: what now?                       everyone is so untrue...”                                  to be argumentative
    I began my cross examination cautiously, touching             We lawyers are only as good as the merits of our
                                                                                                                              and avoided basic

on a few uncontroverted issues to which I received             client’s case, or only as true as our client can be under
willing admissions. But I knew that the important              cross examination!
admission to obtain was that the Defendant was the

                                                                                                                            Issue 02 | Buchanan’s Brief | Page 3
                                       HoMeoWneRs insURAnCe –
                                       Why Do We neeD it? by Luthfeya Cassim

                                       When you apply for a homeloan                                     ‚‚ looking at the amount of the premiums only as the
                                                                                                          conditions, inclusions and exclusions of the policy are of
                                       to purchase a property you will                                    equal importance;
                                       find that the bank will impose                                    ‚‚ for cover equivalent to the replacement value of your
                                                                                                          home as opposed to the value of your bond;
                                       the condition that you take out
                                                                                                         ‚‚ to property value increasing over time, review the
                                       homeowners’ insurance cover for                                    sum insured often enough to avoid being under-insured.
                                       the structure. Why do the banks
                                                                                                         ESSENTIAl POINTS TO INCluDE IN
                                       insist on this cover and why is it so                             YOuR POlICY:
                                       important to understand your policy?                              Where a client has chosen their own insurance policy,
                                                                                                         and where the property is bonded, the bank will require
                                       We answer some of your questions.                                 that the policy conforms with the bank’s requirements
                                       WHAT IS IT?                                                       before it will be accepted. Each bank differs with their
                                       Homeowners Cover is short term insurance that                     insurance requirements for clients opting for their
                                       protects your house and all other permanent structures,           own insurance. Make sure that you’ve included the
                                       improvements and buildings on the property against                following important points in your policy:
                                       loss and damage.                                                  ‚‚
                                                                                                          confirmation of the insurance company’s name;
                                                                                                         ‚‚ the property is insured for the amount
                                       WHY DO I NEED IT?                                                  determined by the bank;
                                       As a homeowner, you should always take into account the
                                                                                                          confirmation of the property insured;
                                       possibility that something unexpected like a fire, theft or
                                       accident could happen at any time. The best way to ensure         ‚‚ date of inception of the policy must be reflected;
                                       that you are protected against such possibilities is through      ‚‚
                                                                                                          confirmation of the insurance premium;
                                       a Homeowners Insurance Policy. Not all homeowners’                ‚‚ policy number to be noted on the policy;
If you would like further advice       policies are the same, therefore you need to ensure that
about your insurance, kindly                                                                             ‚‚ bank’s interest in the insured property must be
                                       the policy chosen provides the coverage you require.
contact one of our property                                                                               noted;
professionals at info@stbb.co.za                                                                         ‚‚ bank’s interest must rank prior to your interest;
                                       WHO PROVIDES IT?
or via our website www.stbb.co.za      All the major banks provide their clients the option              ‚‚ the policy will not be invalidated by any act or
                                       of taking the bank’s homeowners’ insurance policy,                 omission of yours if such act or omission occurs
                                       which would include all the clauses required by the                without the bank’s knowledge;
                                       bank to fulfill its own insurance policy requirements.            ‚‚
                                                                                                          confirmation that Sasria cover and Public liability
                                       Alternatively, the banks offer clients the option of taking        Cover are included;
                                       their own homeowners’ insurance – more on this later.             ‚‚
                                                                                                          confirmation that Subsidence and landslip cover,
                                                                                                          limited to the sum insured, is included in the policy
                                       WHAT IS COVERED?                                                   where insisted by the bank and included in the
                                       Homeowners’ insurance policies usually include cover               homeloan conditions;
                                       for the physical structure, fixtures and fittings like built-in   ‚‚ the insurance company will take reasonable
                                       appliances, sanitary ware, geysers, etc. Types of events           steps to notify the bank of changes affecting the
                                       which are usually included in homeowners’ insurance                policy during the duration of the agreement as
                                       policies are natural disasters such as floods, lightning           well as failure on the part of the insured to pay the
                                       and storms, as well as non-natural disasters such as fire,         premiums.
                                       explosions and other accidental damages. However,                    Homeowners’ insurance is one of the most
                                       make a point of reading the policy for exclusions and add         important insurance policies to have in place to ensure
                                       on any eventuality which might require cover.                     that you are adequately covered when unforeseen
                                                                                                         events occur. Make sure that you choose the best
                                       HOW TO CHOOSE A POlICY:                                           option for you, and make sure that you understand it!
                                       When choosing a homeowners’ insurance policy, keep
                                       these very important points in mind:

Page 4 | Buchanan’s Brief | Issue 02
an eXcitinG UpDate on the
tAX AMnesty FoR PRoPeRty
oWneRs by Allan White

We trust that most of our readers will by now have had the pleasure of
learning about the “tax amnesty” introduced by SARS (originally Para 51
and now Para 51A of the 8th Schedule of the Income Tax Act) which
allows an “amnesty” to homeowners to transfer properties in which they
“ordinarily resided” from a CC, Company or Trust, free of transfer duty,
capital gains tax and secondary tax on companies, where applicable.

A    lthough there is a little confusion amongst the
     general public, we can confirm that the “amnesty”
period for homeowners to use the Para 51A
                                                          problems since SARS Guidelines have concluded
                                                          that the property must then have been your
                                                          “primary residence”. As a result of objection and
legislation will only expire at the end of                recommendations, SARS has recognised that this
December 2012.                                            interpretation might be unduly restrictive since
                                                          this “amnesty” was introduced to all taxpayers to
CONDITIONS Of THE AMNESTY                                 restructure their affairs in the light of changes in the
There are two important conditions imposed by the         tax laws.
current Para 51A in order for you to be able to get the
benefits of this type of “tax free” transfer:             GOOD NEWS fOR HOlIDAY HOME
   1. You must have “ordinarily resided” in the
                                                          As a consequence, a Taxation laws Amendment Bill
      property; and
                                                          has been introduced for public comment which seems
                                                                                                                        Subscribe to our Newsflash
   2. You must have used the property for “mainly         to remove the “ordinarily resided” provision, making
                                                                                                                        and Thought of the Week at
      domestic” purposes.                                 it possible, if the legislation is approved in its current
                                                                                                                        info@stbb.co.za to stay on top
   The “mainly domestic” provision relates to the         format, that second dwellings used by family members
                                                                                                                        of further developments!
requirement that you must not have used more than         and holiday homes will also be able to be transferred
50% of the property for business purposes. Simple         in terms of the “amnesty”.                                    To find out if you qualify for
enough.                                                       If the Bill proceeds through Parliament in the            the tax amnesty, contact Allan
   However, the requirement that you must have            normal way, it would likely be passed in October or           White on allanw@stbb.co.za
“ordinarily resided” in the property has caused           November 2011.

                                                                                                                       Issue 02 | Buchanan’s Brief | Page 5
                                       sMe’s And tHe neW
                                       CoMPAnies ACt:
                                       hoW noW? by Maryna Botha

                                       In South Africa, Small and Medium Business Enterprises (SMEs) play a
                                       major role in the private sector and contribute substantially to employment.
                                       Close Corporations (CC) used to be a very popular tool in which to
                                       incorporate and run a small business and, according to the companies
                                       and intellectual property database of South Africa, CCs account for 78%
                                       of the total registered entities, with an annual growth of 20%.

                                       OuT WITH THE OlD …                                        IN WITH THE NEW …
                                       However, what appears to be an anomaly viewed             According to the Department of Trade and Industry,
                                       against the aforegoing, the new Companies Act which       the simplified new form of a private company is ideally
                                       became operational on 01 May this year, no longer         suited for the running of SMEs. A private company
                                       allows for the incorporation of new close corporations.   is defined as a company that is not state owned
                                       This means that to register a new enterprise as a         and has a Memorandum of Incorporation (generally
                                       closed corporation is no longer an option for a new       referred to as the ‘MoI’, serving as the constitution of
                                       small business, nor can an existing company convert       the entity) that restricts the transfer of shareholding.
                                       to a close corporation. (Small business owners            It is still called a Proprietary limited and is indicated
                                       who prefer to register their business as a closed         by the suffix (Pty) ltd. Private companies need not
                                       corporation may possibly still have the option to buy     have more than one director and one shareholder, and
                                       a shelf CC, that was incorporated before 01 May           there is now no limit on the number of shareholders
                                       2011, and conduct their business in this vehicle.)        that a private company may have. (In the 1973 Act
                                       Close corporations that were registered prior to 01       shareholders were limited to 50 only.) Also, depending
                                       May 2011 remain valid and can continue to trade as        on certain factors such as the type of business and
                                       before. They must however comply with the provisions      amount of employees, an owner-managed private
                                       of the new Companies Act with regard to certain           company may not be required to have an annual audit
                                       aspects such as name reservations, liquidations,          done or even to obtain an independent review of its
                                       deregistration and restoration. In addition, certain      financial statements.
                                       provisions of the Companies Act are made available to
                                       CCs. for example CC’s may make use of the business
                                       rescue provisions as contained in the new Act, should
                                       they be in financial distress.

Page 6 | Buchanan’s Brief | Issue 02
lESS OR MORE RED TAPE?                                  IT APPEARS AS SIMPlE AS PIE …
The legislature has attempted to simplify the           The new Companies Act aims to, amongst other things,
company registration process. All that is required to   reduce the administrative red tape in incorporating new
incorporate a new private company is the submission     companies and simplify the regulation of these entities.
of a Memorandum of Incorporation and a Notice           Many argue that the phasing out of close corporations
of Incorporation to the Companies and Intellectual      is unfortunate. Time will tell what the effect of the
Property Commission (which used to be CIPRO but is      exclusion of CC’s and the new Companies Act in
now called the CIPC). Once the two documents have       general will be on SME’s.
been reviewed and approved by the Commission and
the required fee paid, a business registration number
and a registration certificate will be issued.

If you require advice on how to manage your existing CC in future, and whether or not to convert
it to a private company in terms of the new Act, speak to one of our professionals at info@stbb.co.za
or visit www.stbb.co.za


No evidence is led in a court of appeal. Only the record of the proceedings in the trial court is
placed before the appeal judges, on which, after having heard argument by the advocates, they

decide whether the accused was correctly convicted and whether his sentence should stand or
be set aside.
                                                                                                                            According to
Judges van Heerden and Thirion were presiding in a criminal appeal in Natal.
                                                                                                                      the Department of
Advocate Ventus:
                                                                                                                      Trade and Industry,
  My lords, the first time I read the record I thought my client had no chance of success on
                                                                                                                      the simplified new
appeal. The second time I read it I thought he might have a chance on appeal. And when I read
                                                                                                                      form of a private
the record a third time, my lords, I was convinced that he had an excellent chance for success on
                                                                                                                      company is ideally
                                                                                                                      suited for the
Junde van Heerden:
                                                                                                                      running of SMEs.

  I am sorry Mr Ventus, but we have read the record only once!
                                                                       from The law & its Humour by Colin White

                                                                                                                   Issue 02 | Buchanan’s Brief | Page 7
                                       WHose CoMMon
                                       is it anyWay? by Melanie Coetzee

                                                We are often approached by           By way of example specific mention will be made
                                                                                 to the Rondebosch Common in Cape Town, as this
                                             members of the public wanting       is a relatively prominent piece of open municipal
                                               information on common open        space attracting huge amounts of interest due to its
                                                                                 location and proximity.
                                             spaces in specific residential or       The Rondebosch Common was demarcated
                                       commercial areas. Questions mostly        as lot 17 on the map of Church lands prepared
                                          relate to ownership, maintenance       by Surveyor HM Shaw in 1909 and which
                                                                                 demarcation was entrenched in the Rondebosch
                                            and safety and although we see       Church lands Act No 27 of 1909 (“the Act”).
                                            these areas all around us in our     The land was allocated to the Municipality of
                                                                                 Rondebosch under Deed of Transfer 1912 for use
                                           cities, we are not often aware of     by the minister of the Rondebosch St Paul’s Church,
                                        the legislative rules and regulations    but subject to the conditions of the Act mentioned
                                           attached thereto. More often we
                                                                                     The preamble of the Act provides specifically
                                               receive calls from prospective    that this open space “shall at all times remain open
                                              developers or land scouts with     to the public as a place of exercise and recreation.”
                                                                                 The Act further made provision in s16 for the
                                        ambition to obtain title to the whole    management and control function to vest with the
                                           or certain parts of such common       Municipal Council of Rondebosch and Mowbray for
                                                                                 the “purpose of public parks and recreation grounds
                                          space, which of course poses the       for thoroughfares…” It will be seen from s14 of
                                          question: How do these pieces of       the Act that prohibition was placed on alienation
                                        land fall within the general land use    in any manner or form, but that the Council had
                                                                                 entitlement in terms of s18 to use any portion of
                                         and planning structure and is there     the land made inalienable by the Act for increasing
                                       any possibility of all such land being    the width of or for extending any road shown
                                                                                 on the General Plan related or adjacent to this
                                           developed one way or another in       municipal area. This Act was repealed and replaced
                                                                   the future?   by Ordinance 19 of 1967 but which ordinance
                                                                                 secured the provisions of the Act under title.
                                                                                     On 29th September 1961 the Rondebosch
                                                                                 Common was proclaimed a Natural and Historical
                                                                                 Monument by the then Minster of Education, Arts
                                                                                 and Science at the time, B J Vorster, on application
                                                                                 by the Commission for the Preservation of Natural
                                                                                 and Historical Monuments, Relics and Antiques.
                                                                                 This means that not only is this land subject to
                                                                                 the provisions of the Act mentioned above, but
                                                                                 also to the provisions of the Natural and Historical
                                                                                 Monuments Act 4 of 1934. This would obviate the
                                                                                 degree of care with which the Council reached
                                                                                 management and control decisions and would
                                                                                 further protect the public’s rights to enjoy the free
                                                                                 open space.
                                                                                     Bridget O’Donogue, the principle Environmental
                                                                                 Planner at the City of Cape Town’s Plumstead
                                                                                 Office, confirms that ownership in all such land

Page 8 | Buchanan’s Brief | Issue 02
now vests with local municipalities and as such, the          not put all property owning neighbours at ease, it does at
Rondebosch Common is zoned as a Provincial Heritage           least reassure that some processes exist for any rezoning
Open Space Site. This level of zoning dictates that           on these types of land and proves that these applications
application for subdivisions on such land, for either         are not taken lightly. By the same token, The Heritage
municipal purposes or development purposes, is dealt          Department confirms that, should unlawful occupation
with and assessed by all departments within the City          occur on open heritage spaces, officials would deal with
of Cape Town Municipality, including Heritage Western         the eviction procedure under normal legislative provisions.
Cape. factors which are taken into account could include          The Rondebosch Common has however for years
but are not limited to heritage and public value, traffic     been utilised by organisations such as The Rotary
provisions, water and sewerage provisions.                    Club of Rondebosch and the Ratepayers Association
   Should the Municipality therefore wish to sell off         of Rondebosch to stage fundraising and community
sections or the whole of the Rondebosch Common,               projects. Should such an event be planned by an
application would need to be tendered to all sections of      organisation, application should be brought to the Town
Council for consideration. The normal transfer procedure      Clerk of the Cape Town City Council who in turn will
would then apply and the Title Deed would be adjusted in      submit the proposal to all the divisions for approval. Such
respect of removal or insertion of restrictions and further   approvals are readily granted as it would further the object
conditions. The Property Management Department of the         of the Common, as originally envisaged in 1909.
City of Cape would act representatively should land be            Members of the public cannot as readily obtain copies
sold off for public development or private use.               of title deeds to this land at the Deeds Office as one
   A concern that certain adjacent homeowners often           could for privately owned property, and it would take
raise is the one of possibility of future low-cost or         a considerable amount of investigation to locate the
government housing on such common open spaces.                relevant title at the different Council divisions. One needs
The Town Planning Department however confirms that            to apply through the Property Management Department
these types of applications by government would be            for copies, should inspection or enquiry be necessary.
viewed through the same process as public applications,           With regards to the practical management of the
which means that the same principles would apply when         Common, it is of interest to know that the Rondebosch
assessing the validity or viability of such applications.     Common is maintained by the City Parks department of
   With reference once again to the Rondebosch                the municipality and the maintenance relates to grass
Common, it is important to note how previous applications     cutting, refuse removal, tree felling and the general
for development were dealt with. In the early 1990s           appearance of the site. for any member of the public
the Council’s Town Planning Branch in conjunction             concerned about the level or standard of upkeep relating
with Council’s Surveys and land Information Branch            to the Rondebosch Common, reference can be made to
identified the Rondebosch Common as a “possible site          the list of maintenance regulations which was published
for redevelopment”, with special reference to “low cost       in the Province of Cape of Good Hope Provincial Gazette
redevelopment”, and submitted their Memorandum to             dated 14 August 1919 and which makes specific

the following municipal departments for comment: - City       mention of all Council’s maintenance obligations. Once
Electrical Engineer, Traffic Manager, City Drainage and       again, the Property Management Department can be                       The preamble
Sewerage Engineer, Director of Parks and forestry,            contacted should one require a copy of such list of            of the Act provides
City Water Engineer, Director of Building Survey and          obligations.                                                   specifically that this
the Director of Metropolitan Transport Planning. All              The overall impression which is created by the Planning    open space ‘shall at
departments lodged their consent with only one                and Heritage Departments is that these common sites            all times remain open
department disagreeing with the suggestion. The               are becoming increasingly valuable for Council, although       to the public as a
Director of Parks and forests rightly pointed out in his      the value might not always be determined in financial          place of exercise and

reply letter dated 26 January 1995 that “it must be           terms but rather more holistically. With big metropolis such
remembered that the Rondebosch Common is a National           as Cape Town and Johannesburg developing at a rapid
Monument” and as such the Director confirmed that his         rate, it is a comfort to believe that our children and their
department will not consent to any “development of any        children might still have well-managed, accessible green
nature… to be considered…” The Common therefore               patches in which to play, something we might have taken
survived to live another day. Although this answer would      for granted in years gone by and well worth preserving.

                                                                                                                             Issue 02 | Buchanan’s Brief | Page 9
                                        the removal of chilDren
                                        across international boUnDaries
                                        by Christel Beukes

                                               In our modern society,
                                          children are today as likely    T    he increasing ease and affordability of international
                                                                               travel and parallel increase of movement of persons
                                                                          across state and international boundaries, have resulted in
                                               to be affected by their    not only commercial law, but all areas of law taking on a more
                                        parents’ divorce and custody      international character on a larger scale. This is also true for
                                                                          the field of family law.
                                            battles, as they are likely      Whilst there will always be concerns of jurisdiction in
                                         to enjoy international travel    international law matters, the issue of the removal of children
                                                                          across state and international boundaries has for some years
                                          with their parents, as both     already been governed, for signatory countries, by the Hague
                                         these issues have become         Convention on the abduction of children. The Convention

                                                     commonplace in       affords the parent, from whose care the child has unlawfully
                                                                          been removed to another country, the means with which to
                                                        today’s world.    apply, in a specific forum, for the return of the child.
                                                                             Several countries such as South Africa, the united Kingdom,
                                                                          certain states in the united States of America, and also
                                                                          Australia, are signatories to the Hague Convention and support
                                                                          each other in facilitating the return of unlawfully removed
                                                                             There are of course a number of factual requirements for the
                                                                          Convention to be applicable. Should you find yourself or your
                                                                          child affected by this situation, we would strongly advise you to
                                                                          make contact with a local family law practitioner as soon as
                                                                          possible to determine whether you are entitled to commence
                                                                          a Hague Convention application to the Central Authority in
                                                                          the area where your child was ordinarily resident before being
                                                                          removed unlawfully.

                                                                          For assistance with such an application or for more
                                                                          information on this topic, kindly contact one of our
                                                                          Family Law professionals at info@stbb.co.za or via our
                                                                          website www.stbb.co.za

Page 10 | Buchanan’s Brief | Issue 02
Does my casUal employee
really neeD a contract?
by Liezl-Mari Mouton

I  n a word… YES! The Basic Conditions of
   Employment Act requires that you give your
employees the terms and conditions of their
                                                          employment will not apply to him/her unless you both
                                                          agree otherwise. This includes the following:

                                                          ‚‚ ordinary working hours of employees who earn
employment in writing. Should you fail to comply with
                                                           below the threshold are limited to 45 hours per
this legal requirement, you could be prosecuted.
                                                           week. If your employee earns above the threshold,
    This does not mean that employment contracts
                                                           this limit is not applicable, unless agreed otherwise.
framed in formal legal language are necessary in
order to be lawful and valid. The only requirement is     ‚‚ can only require your employees to work
that it must be in writing. This can, for instance, be     overtime if there is agreement on this and the
in the form of a letter of employment, as long as it       maximum overtime hours are limited to 10 hours
contains the employee’s basic terms and conditions         per week. If an employee works overtime, you are
of employment.                                             obliged to pay this employee at least one and a half
    You need to include details regarding at least the     times his/her ordinary wage for overtime worked.
following:                                                 An employee who earns above the threshold is not
                                                           automatically subject to these conditions.
‚‚ date of commencement of the employee’s
 employment;                                              ‚‚ employee who earns below the threshold must
                                                           be paid double his/her ordinary wage for each
‚‚ terms and conditions of employment applicable
                                                           hour s/he works on a Sunday and, if the employee
 for the duration of the employee’s employment;
                                                           ordinarily works on a Sunday, one and a half times
‚‚ employee’s remuneration;
 the                                                       his/her ordinary wage. An employee who earns
                                                           above the threshold is not entitled to extra payment
‚‚ employee’s obligations to you as the employer;
                                                           for Sunday work.
‚‚ and when the contract can be terminated by
                                                           Employees have to agree to work on public
 either of the parties.
                                                           holidays. Those employees that earn above the
   In addition, in drawing up your employees’ contracts    threshold are however not entitled to additional pay
of employment it is not only important to consider the     for such work where employees earning below the
minimum terms and conditions provided for by the           threshold must be paid their normal daily wage for
Basic Conditions of Employment Act, but also whether       the public holiday and, in addition, for the work s/he
there are other laws applicable to your employees.         actually performs on the day.
This may include a Sectoral Determination, Bargaining        Take the time to create a written employment
Council Agreement or Collective Agreement with a          contract with your employee, however simple the
trade union.                                              document may be, so that both of you can enjoy the
   further reason to give fresh consideration to your     confidence and clarity it will bring to your working
employees’ contracts of employment is the fact that       relationship.
the earnings threshold for employees provided for in
                                                          If you would like assistance with employee
the Basic Conditions of Employment Act has changed
                                                          contracts, kindly contact Liezl-Mari Mouton on
from R149 736 to R172 000 with effect from
                                                          liezlmarim@stbb.co.za or via our website
1 July 2011.
   This means that, if an employee earns more than
R172 000 per year, certain minimum conditions of

                                                                                                                    Issue 02 | Buchanan’s Brief | Page 11
                                           for HoW LonG can i
                                           PRoteCt My CHiLd?
   We welcome your feedback                by Annetjie van Rooyen
  and invite you to contact us at

              Contributors:                If you know your child is pursuing a detrimental lifestyle of drug
   Liezl-Mari Mouton, Christel Beukes,
  Melanie Coetzee, Annetjie van Rooyen,    addiction and you are concerned that he/she might carry the
      Maryna Botha, Hanlie Walker,
    Allan White, Chris Riego de Dios,      consequences thereof for the rest of his/her life – possibly
             Luthfeya Cassim
                                           even become prone to an early death – do you have the right
         Editor: Hanlie Walker
                                           to approach the Court for support in entering your child to a
           Design: Infestation
            021 461 8601                   treatment centre?

            www.stbb.co.za                      recent case answered this question in the         Children’s Act, Mr Nel’s ‘child’ had already reached
       Cape Town 021 406 9100                   negative, when leon Nel, father of 21-year        the age of majority at the age of 18 and is an adult
        Claremont 021 673 4700
        Fish Hoek 021 784 1580
                                           old Chantel Clur, took his daughter’s well-being       female in the eyes of the law, with legal capacity
      Somerset Mall 021 850 6400           upon himself and refused to idly stand by and          and rights that the Court cannot disregard. There
        Tableview 021 521 4000
        Tygerberg 021 943 3800
                                           allow his child to pursue a detrimental lifestyle of   was simply no basis for the rule nisi to be confirmed.
      Johannesburg 011 853 8300            drug addiction. Mr Nel approached the Court to         Mrs Clur has the capacity to make decisions on her
                                           obtain an order to have his daughter delivered to      own behalf, which includes the right to determine
   DISCLAIMER: This communication          a rehabilitation centre to undergo treatment. The      her own future, and no other person has the right to
       is subject to the disclaimer of
  STBB | Smith Tabata Buchanan Boyes
                                           temporary order was put into effect and Mrs Clur       determine how she may exercise her constitutional
           which can be found at           was arrested, and delivered to the treatment centre    rights, which include her right to movement, her
                                           where she was to remain for a minimum period           right to privacy and her right to association. Our law
                                           of eight months. Moreover, Mr Nel, who clearly         has always regarded the deprivation of personal
                                           blamed his daughter’s husband for her appalling life   liberty as a serious injury.
                                           choices, seeked and obtained an interdict against          In conclusion it comes down to the following fact:
                                           Mr Clur to restrain him from contacting his daughter   even though fatherly emotions, such as Mr Nel’s, are
                                           whilst she was receiving treatment.                    admirable, it does not translate into a legal right and
                                              On the return date of the rule nisi, the Court      it “… remains a concern and not a right actionable
                                           ruled that Mr Nel does not have the necessary          in law”.
                                           locus standi. Being the father of a person does not                                                Read more:
                                           automatically vest him with the rights to institute             l. Nel v C. Clur and others (El 744/2011 & ECD
                                           legal proceedings on her behalf. In terms of the                             1177/2011) [2011] ZAECEllC 1.

                                           HUMoUR in CoURt
                                             The renowned advocate Beauclerk Upington K.C. was heard to say that if he were offered a judgeship,
                                           he would refuse it because “I would rather stand on my feet all day long and talk nonsense than have to sit
                                           on my bottom all day and listen to it.”

Page 12 | Buchanan’s Brief | Issue 02

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