by Vicky | 18, 12, 19 | Uncategorized
Mutatis mutandis: things being changed that have to be changed
Mutatis mutandis is a Latin maxim most often used when importing the terms of one document into another. The literal translation is “things being changed that have to be changed”.
For example, if the parties have a number of agreements between them, and they wish for certain changes to apply to all of the agreements, they can amend one of the agreements. They should state that the changes proposed for the first agreement apply mutatis mutandis to all the other agreements, without having to manually change all of the other agreements.
Another situation in which the maxim can be used is if the parties have entered into a prior agreement, (such as a lease) and wish to incorporate some of its terms into their new lease agreement. In this instance, their new lease agreement would state that “the terms of the lease agreement between the parties dated 10 June 1984, governing the permitted uses of the premises will apply mutatis mutandis”.
What are the legal consequences?
Our courts have held that where an agreement seeks to amend previous agreements by using the term mutatis mutandis, all of those agreements are amended automatically and the parties are bound by those amendments.
Our tips:
(a) Rather incorporate the terms of your old agreement into the body of your new agreement
(b) If (a) is not possible, then use plain language instead of outdated Latin maxims in your agreements.
(c) If you do see the term mutatis mutandis in an agreement, ensure that you are aware of what effects the proposed amendments will have in all the agreements. A change which is suitable for one agreement might not be suitable for another.
For more information on this and other legalese, please contact us.
by Vicky | 11, 12, 19 | Uncategorized
Disciplinary Hearings within the workplace – What All Employers and Employees Should Know
It is important for employers to know that employees cannot be dismissed without following proper procedures. Disciplinary hearings is to ascertain if the employee is guilty of misconduct or not, and if the employee is guilty, what the appropriate sanction should be.
This means that even if a staff member has allegedly stolen from the company petty cash reserves, the employee cannot be dismissed without a disciplinary hearing. They can, however, be suspended pending the outcome of a hearing.
Employees who are dismissed without first being called to a disciplinary hearing will have a strong case against the employer at the CCMA for unfair dismissal.
Employers should also not confuse disciplinary hearings with hearings for poor work performance and hearings for incapacity.
Disciplinary hearings relate to situations where the employee is potentially guilty of some form of misconduct. Having a disciplinary code in place will assist in keeping employees informed as to what constitutes misconduct in the workplace, as well as making them aware of the sanctions attached to the different instances of misconduct.
Poor work performance hearings, on the other hand, are hearings held for employees who are not performing according to the expected standard, and incapacity hearings are held where the employer believes that the employee is no longer capable of performing his or her duties.
Should you have any workplace issues regarding suspensions and/or hearings, please contact Claire Delport to ensure correct procedures are followed.
by Vicky | 14, 11, 19 | Uncategorized
Employment Contract – What all Employers and Employees should know.
If you are an employee (as defined in the Basic Conditions of Employment Act, 1997 – “the Act”), you must insist on having a written employment contract setting out all the details of your employment. You should also ask for a copy of the contract once signed.
An employment contract may be for an indefinite period or for a fixed period (either a fixed period of time or for the duration of a specific project). Employers should guard against using fixed-term contracts for their employees which are rolled over continuously. This may give the employee/s the expectation that the contract will continue to roll over. When this does not happen, the employee/s may approach the CCMA for assistance on the basis that there was a reasonable expectation that the contract would continue to roll over.
The Act sets out certain issues which need to be included in employment contracts. And you need to make sure you comply with this legislation. It may also be useful to deal with certain other issues not specified in the legislation – such as restraints of trade, confidentiality, intellectual property rights and probationary periods.
It is worth noting that employees working less than 24 hours in a month are not covered by the Act. Employees earning above the statutory threshold (currently R205 433,30 per annum) are excluded from certain sections of the Act.
For assistance and advice as to which contract is best for your circumstances, what should be included in that contract, and what your rights and obligations are either as employee or employer, please contact Claire Delport or call 031 266 2530.
by Vicky | 11, 10, 19 | Uncategorized
What does set-off mean?
Set-off allows for the termination of mutual obligations between parties without an exchange of performance. This is a well-established principle of South African common law dating back to Roman Law. However, the National Credit Act, 2005 and recent case law have changed the legal landscape.
An example of this principle is, Andy owes Bob R100,00 and Bob owes Andy R150,00. Andy and Bob can set-off their debts, extinguishing Andy’s debt and reducing the amount Bob owes Andy to R50,00.
More commonly: Amber has a credit card facility and a savings account with Bozo Bank. Her credit card is overdue and her savings account has a positive balance. Bozo Bank would then use its common law right to set-off to use the balance in Amber’s savings account, to reduce the debt owed on her credit card.
What are the common law requirements?
The debts must:
(a) exist between the same parties in the same capacities (Bozo Bank cannot use Amber’s personal savings account balance to set-off the loan she took in her capacity as a director of her company);
(b) be of the same kind (in our example it is money, but the same principle can apply when trading in grain or anything else);
(c) be due and payable; and
(d) be liquidated (capable of speedy and easy proof).
If these requirements are met and there is no agreement between the parties that excludes set-off, then either party will be entitled to exercise their common law right to set-off.
What are the implications of the National Credit Act, 2005 (“the NCA”) and recent case law?
Our courts have recently held that where a credit agreement is subject to the NCA the credit provider cannot set-off a debt without meeting the requirements of the NCA.
In our example this means that Bozo Bank can no longer set-off Amber’s credit card debt with the balance in her savings account unless:
Amber has given authorisation that specifies:
- The account which is to be debited (her savings account);
- The obligation which is to be satisfied (her credit card debt);
- The amount of the set-off; and
- The date on which the set-off is to take place;
- The authorisation must either be given in writing or recorded electromagnetically and then reduced to writing;
- Before making any charges Bozo Bank must send Amber a written notice setting out the information listed above.
Our set-off tips:
- If you are a credit receiver (consumer), know your rights. The bank (or other credit providers subject to the NCA) cannot automatically apply set-off without meeting the requirements mentioned above.
- If you are the provider of a service in a transaction that is not subject to the NCA, ensure that your underlying agreement and/or your terms and conditions deal with set-off in a manner that is acceptable to you.
- If in doubt, contact us for legal advice.
Visit our website for more information.
by Vicky | 26, 09, 19 | Uncategorized
Can your ex inherit in terms of your will?
If you had your will drawn up while you were married, in all likelihood you made your spouse a beneficiary of your estate. If you subsequently divorced your spouse, your ex will still be a beneficiary unless:
- Your will makes provision for your wishes in the event of divorce;
- You die within three months of your divorce (Section 2B of the Wills Act, 1953); or
- You have updated your will since your divorce.
The consequences of not updating your will after divorce:
If you die within the first three months after your divorce has been finalised
Making no provision for what happens in the event of a divorce in your will, your ex will be deemed to be dead in terms of section 2B of the Wills Act, 1953 and will not inherit.
If you die more than three months after your divorce has been finalised
Making no provision for what happens in the event of a divorce in your will, your ex will inherit. The logic here is that, if you did not intend for your ex to inherit, you would have changed your will after your divorce within the 3 month window period.
Our tips:
- Ensure that your will includes your intentions in the event of a divorce, if you are currently married.
- If you are divorced, ensure that your will correctly reflects your intentions. If it does not, contact your service provider and update your will.
For professional advice and assistance with your will please contact Stuart Fourie or Vicky Stott.
