#law – Stupel and Berman

COVID-19: What you need to know

Adele koolen — Thu, 02 Apr 2020 16:45:09 +0000

We can only guess at how the COVID-19 coronavirus outbreak will end, but let’s all take whatever concrete steps we can right now to lessen its impact on our personal lives, on our businesses, and our country.

One of those steps is for businesses to find ways of continuing to operate as normal as possible, given, of course, the exceptional times we are living in. And as employers, many businesses will find themselves facing some novel challenges, particularly during the National Lockdown.

This blog will focus on COVID-19: What you need to know.

Small businesses – the new relief programs

A whole raft of support and relief programs has been announced. Some still need to be finalized, and the situation is changing daily, so keep an eye on the media and incorporate into your business survival plan all relief channels you think may be open to you. At the date of writing, these are the main ones –

The DSBD (Department of Small Business Development) will provide relief to businesses in several categories. Call the DSBD on its 0860 663 7867 hotline or email info@dsbd.gov.za to see if you qualify. Apply at https://smmesa.gov.za/.
The DTI (Department of Trade and Industry) is set to provide relief for large businesses as well as small. Keep an eye on the DTI’s website for developments.
The Solidarity Fund has been set up with R150 million from the government to, amongst other things, assist and support those affected (contact details here).
Employer and employee relief: Access the “Easy Guide for employers on COVID19” here and read up on the “Temporary Employer/Employee Relief Scheme” and UIF benefits from a special R30bn National Disaster Benefit Fund. Confirmation that employees who fall victim to the virus will be paid through the Compensation Fund – details here.
Other funds and relief measures: The Rupert and Oppenheimer families have pledged R1 billion each to help struggling small businesses and employees – the details are not available at the date of writing. Read the President’s speech here for more on planned or implemented measures involving tax relief, changes to the Competition Act, a fund to support the tourism sector, and more.

Employers – comply with the law!

From a legal perspective, employers, in particular, need to have a solid action plan in place to ensure that they comply with all our many employment laws, which will continue to apply as is, unless and until the government announces any new measures to the contrary.

Detailed planning will not be easy. With the situation changing daily, keep informed of developments and keep all your plans flexible.

In any event, there is, unfortunately, no “one size fits all” answer to questions like “Can I dismiss an employee who tests positive for COVID-19?”, “Can my employees insist on working from home?” “Can I start retrenching?” “Can I prohibit employees from traveling abroad for personal reasons?” “What steps must I take to ensure a safe working environment, and what rules can I put in place to underpin them?”.

The list is endless, and the answers to these questions will depend upon your Lockdown exemption status, your particular employment contracts, business circumstances, operational needs, and so on.

Your employee action plan

We need to get used to constant change and uncertainty, but there are steps you can take now to plan for as many eventualities as possible –

As a start, incorporate into your “COVID-19 Business Plan” all the possible scenarios you can think of, both during the National Lockdown and after it ends.
Then brainstorm – with your employees where you can – a list of all the employment-related problems you and they might face. Use that in turn to make a list of questions you will need the answers to under each scenario.
Then, make sure you are fully prepared to deal with whatever may come your way by taking specific legal advice on each one of those questions.

Freedom Of Speech And The Law Of Defamation

Adele koolen — Mon, 09 Mar 2020 10:26:57 +0000

For many whose homes are where their hearts are, the Draft Expropriation Bill, 2019, which seeks The right to freedom of expression is a right enshrined in section 16 of the Constitution. Even though this right might allow one to freely express oneself, this right is limited. One cannot make statements that would be harmful to someone else’s good reputation and human dignity. The law of defamation protects exactly that and there should be a balance between the right to freedom of expression and the value of human dignity.

Article:

It is correct that one has the right to freedom of expression, but it is important to remember that this right is limited. When one oversteps the limitations, it can lead to the defamation of another person’s good name and reputation.

Defamation is a part of the law of delict and can be defined as any damaging statements made publicly with the intention to harm or damage someone’s good name and reputation. In order for a person to succeed in a delictual claim of defamation, there are certain elements that must be present. The elements include wrongfulness, intention and the publication of a defamatory statement or behaviour towards another. Note that the law does not require the statement to be false in any way. These three elements that must be present and I will elaborate further below:

Wrongfulness:

Wrongfulness, as an element of defamation, is the infringement of a person’s right to his good name and reputation. It is irrelevant whether the person involved has suffered damages once the element of wrongfulness has been established. The appropriate test for wrongfulness will be the objective “reasonable person” test.

In South African law, the onus of proof is on the person claiming that an act of defamation has occurred and he or she must submit proof that the violation was indeed wrongful. It is not one of the requirements of defamation for the statements or actions to be false. Defamatory words that are true can also be actionable.

Intention:

The person making the defamatory statements must have had an intentional focus or will to damage another person’s reputation. Be it by statements or comments, he or she must have known at the time that what they were doing would be harmful to another person’s good name. The defendant in a defamation claim must raise a defence which proves that the element of unlawfulness or intention was never present.

Publication:

Generally, the good name, respect or status of a person depends on the opinion others have of him or her and the core of defamation is the infringement of one’s good name. When defamatory statements or behaviour has been published or a third party has been informed of the information, defamation arises. When a third party isn’t made aware of the defamatory statements or actions relating to a person, his or her reputation cannot suffer damages. Therefore, publication is an important element of defamation.

Generally, this requirement is met if the statements or actions are made known to at least one other person other than the plaintiff himself/herself. Once the element of publication is established, the onus is on the plaintiff to prove that the defendant was responsible for the publication of such statement(s). Any person who repeats or merely confirms these defamatory statements can indirectly be held responsible for the publication thereof. It is not only the person who initially made the defamatory statements public, but also any other person who repeats or confirms it, who can be held responsible for the damage to a person’s reputation.

When the matter is heard in court, the two conflicting constitutional rights of dignity and privacy with that of the right to freedom of expression will have to be weighed up considering the facts.

In conclusion, the important thing to remember is that even though we enjoy the right to freedom of expression, this right is not absolute. One should be mindful when exercising this right.

Reference List:

Law of Delict: Neethling, Potgieter, Visser 5th Edition
Khumalo and Others v Holomisa (CCT53/01) [2002] ZACC 12; 2002 (5) SA 401
The Constitution of the Republic of South AfricaThis 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)

Received: http://succeedadmin.co.za/Storage/SDS/Setup/Mailers/Newsletters/2020/03.March/Freedom_of_speech_and_the_law_of_defamation.pdf

A Loophole

Stupel and Berman — Mon, 04 Nov 2019 08:50:36 +0000

The Matrimonial Property Act 88 of 1984 ensures equal spousal powers in relation to the administration of the joint estate. Section 15 of the Matrimonial Property Act entrenches the right to joint administration by requiring written consent of the other spouse in transactions that would have a substantial impact on their share of the joint estate. Most notably, section 15(2)(g) requires the consent of a spouse “to enter into a contract as defined in the Alienation of Land Act” which is generally understood as requiring the consent of both spouses when purchasing immovable property. The Alienation of Land Act 81 of 1988 defines “contract” as a “deed of alienation under which land is sold against payment by the purchaser to, or to any person on behalf of, the seller of an amount of money in more than two installments over a period exceeding one year”.

This wording effectively limits the requirement for spousal consent to installment sales which reveals a fatal flaw or loophole in the protection afforded by the system of joint administration of the joint estate for spouses married in community of property. Most modern property transactions are cash sales secured by mortgage and not installment sale transactions. With reference to reported and unreported cases, this article investigates the loophole and proposes a way in which the devastating effects of the flaw might be mitigated in future cases.