There are many types of legal issues that might require a lawyer's help. You may consider hiring a lawyer if you have suffered an injury, been wrongfully terminated at work, are thinking about starting a business, or have been accused of committing a crime. Lawyers can help with legal problems after they come up -- after a car accident, for example -- but in other instances, consulting a lawyer before a legal issue arises can help you anticipate and prevent serious legal problems.
Some common situations where assistance from a lawyer may be necessary include:
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Making a will as part of your estate plan ensures what you leave behind will be taken care of according to your wishes, including the care of your children. When you make an online will, you can appoint someone to settle your affairs. The person you appoint will ensure that your beneficiaries receive their inheritance. You can use it to:
If you are looking to start or write a will, here are a few steps you can take to quickly and easily accomplish this:
Who should consider an online will?The short answer to this is that everyone should have one, even if you are tight on money. Whether you decide to Creating a living will or a last will and testament, they are an excellent way to ensure that your assets are properly distributed after you pass, especially if you have children, are a homeowner, or family business owner. You can revoke your online will any time before death by making a new one that advises that all prior wills are no longer valid. To revoke your current will without having to make an entirely new one, you simply have to purposefully deface it or completely destroy it. However, if this is done accidentally it will not be revoked. What happens if you make a new will (which revokes all prior ones) and then decide that you like your initial one better? You need to make an entirely new last will that replaces the new one and mimics the old one. The old last will is invalid and cannot be revived after it has been revoked. It should be noted that a codicil must be signed and witnessed just like your will, so it may be easier to make an entirely new will. What should I do with my will after I create & sign it?Be sure to tell your spouse, children and other heirs, and executor where they can find the will. Several copies of the unsigned will should be made and stored in a safe place. Be sure that the extra, spare copies are not signed. Otherwise, it could create confusion as to which one is the authoritative, legally binding document. You should also be sure not to make changes to your will after it has been witnessed and signed. Making changes like removing a person’s name or adding clauses to your will after it has been signed risks invalidating the document. Should you have a lawyer review the online will you create?In simple situations with no tax issues a person can easily learn how to make a will online and be better off than having no will at all. However a simple situation like this is often rare and you more likely are dealing with spouses from second marriages, stepchildren, family businesses, property in multiple states, and other circumstances that make enlisting a lawyer’s help to review your document quite sensible. This will usually help prevent difficulties down the road and ensure that your online will is legally binding and protects the ones you care for.
The South African Police Service (SAPS) has filed a notice of appeal with the Constitutional Court in relation to the judgment on firearm renewals.
“A notice of appeal has been filed with the Constitutional Court and as such, the High Court judgment is suspended until the Constitutional Court has decided upon the matter,” SAPS spokesperson Brigadier Vishnu Naidoo said on Friday, 28 July 2017.
Earlier this month, a Gauteng North High Court ruling declared two sections of the Firearms Control Act (2000) unconstitutional. The two sections deal with procedures and regulations that should be in place when surrendering a firearm for which the licence has already expired. As it stands, the Firearms Control Act (2000) indicates that if a person failed to reapply more than 90 days from the date of expiry, they would be deemed to be in unlawful possession of a firearm. However, the court had ruled that all firearms issued in terms of the act, which are due or were due to be renewed, shall be deemed to be valid. The application brought by the South African Hunters and Game Conservation Association urged that the licensing and administration of firearms system is chaotic and dysfunctional. With the appeal, Naidoo said the status quo is maintained pertaining to compliance with the Firearms Control Act and it is expected of firearm owners, with valid firearm licences, to continue with the timeous renewal of their firearm licences. “The South African Police Service will retain all firearms surrendered by persons, who have failed to timeously renew their firearm licences in accordance with the Firearms Control Act, 2000 (Act No 60 of 2000),” said Naidoo. Furthermore, no prosecutions will be instituted against persons whose firearm licences have expired and who voluntary surrendered such firearms to the South African Police Service.
http://www.bizcommunity.com/Article/196/717/165408.html
There has been a buzz around the Protection of Personal Information Act 4 of 2013 (POPI), which was promulgated in 2013, but it has not been in full effect, the buzz may seem to be white noise. If you choose to take an active role in becoming compliant, you will not win any award or receive a gold star on your forehead, but you will gain and retain the trust of your clients, customers and employees. If you choose to be defiant and ignore the white noise because ‘it is not urgent yet’ then it is likely that you will fall into the deep end when it is urgent, and this will result in sloppiness and subsequent legal problems.
Compliance with POPI is not an easy task; the process requires you to consult with lawyers, technology experts and consultants who will identify potential risks. You will then spend money on security measures and training to mitigate those risks, so is it worth it to commence the process, or can you afford to wait? There are hundreds of articles explaining what POPI is, however, in most cases, POPI is regurgitated and summarised, and many authors are still confused as to what is required to be compliant. To understand what is expected of you in terms of POPI, there are eight conditions that you must be aware of. Accountability You, as the responsible party, have the obligation of ensuring that information is processed lawfully. A responsible party is defined as ‘a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information.’ Regardless if you are the manager of a gym or large corporation, your entity possesses information on your clients, customers, employees and third parties. You are, therefore, responsible for how an individual’s information is used. Processing limitation Information must be processed for its given purpose. If you require identification for the purpose of entering an office building, for example, it is not necessary for you to process or collect information related to an individual’s health records. That would be irrelevant and excessive and, therefore, unlawful. A gym, however, would require an individual’s health information to ensure that if a member has an incident, the appropriate action can be taken. Individuals must consent to the processing of their information (s 11(1)(a)). Purpose specification Personal information must be collected for a specific purpose that is clearly defined, and the individuals in question must be aware of this. Information must not be retained for longer than necessary. For example, if you are operating a spaza shop and someone has bought on credit, their information must be deleted on full payment, or when an individual decides to terminate their membership with a gym, the gym must – unless it has a legitimate reason to keep them – remove all records of that individual. Exact terms regarding data retention and destruction should be stipulated in the relevant contracts. Once the purpose of the data collection has been fulfilled, information must be removed or individuals must be de-identified. Another example is the use of camera surveillance. Due to security concerns, many businesses use closed-circuit television (CCTV) cameras. CCTV collects your biometrics. Biometrics is defined as ‘a technique of personal identification that is based on physical, physiological or behavioural characterisation including blood typing, fingerprinting, DNA analysis, retinal scanning and voice recognition’. A sign that says ‘These premises are under CCTV surveillance’ or ‘Smile you are on camera’ is not POPI compliant. A sign that says ‘CCTV in use for the purposes of crime prevention’ is compliant as it informs individuals that data is being collected and the reason for collection. Further processing limitation The further processing must be compatible with the purpose of the collection of personal information. You must ensure that you do not divert from the reason the information was collected. If your primary reason for collecting personal information is for statistical purposes, you cannot then sell this information to marketers, with the case of CCTV footage, you will not be allowed to use the footage in a movie, for example, as the object of collection was the collection for security purposes. Information quality This one is simple. The information must be accurate, complete and up-to-date. An example of good practice in this regard, is to try to regularly verify information. The South African Revenue Service and commercial banks are particularly good at this, although they may have other reasons for doing so. Openness When processing or collecting personal information, the individuals whose information is being collected and processed must be notified and made aware. It is unlawful to process an individual’s information behind their back. A good example – which is likely to become more prevalent – is warning visitors to your website that you use cookies (small programs that install themselves on a computer) and obtain the individual’s consent. Security safeguards You need to take adequate measures to ensure that the personal information is secure and identify all the reasonable foreseeable risks and take proactive measures to prevent them. For example, if your spaza shop is in a crime ridden area, your premises will require fences, a safe and an alarm system in addition to a standard firewall. If you are a large corporation, such as an insurance company, your business has information regarding peoples’ income, jobs, age, sex, status, medical records and so forth. Sensitive information such as this must be protected with the adequate level of security. It is your duty to ensure that your partners, who have access to this information, meet the minimum security requirements. This includes firewalls, state of the art antiviruses, strong encryption and POPI training for staff. Data subject participation Individuals are the data subjects, and they have the right to access all their personal information that has been collected, they may request the information be corrected or for the removal of outdated and irrelevant information. If you chose to be defiant, existing and potential customers and employees will gravitate towards businesses that process their information in a lawful manner. For example, TalkTalk, a UK telecommunications company, lost 101 000 customers and £ 60 million in revenue after a data breach (Kat Hall ‘TalkTalk admits losing £ 60 m and 101 000 customers after that hack’ www.theregister.co.uk, accessed 2-2-2017). Any person convicted of an offence in terms of POPI faces imprisonment of up to ten years and or a fine, not to mention the civil actions instituted by aggrieved individuals. Defiance could save costs in the short term, but could result in criminal and civil actions being instituted against you in the future, and litigation is not cheap. Sasha Beharilal BCom Law LLB (Unisa) is a candidate attorney at PPM Attorneys in Johannesburg. This article was first published in De Rebus in 2017 (March) DR 14.
http://www.derebus.org.za/popi-compliance-v-defiance/
Question:
I would like to know if it is procedurally fair for an employer to charge you for misconduct after you lodged a grievance pertaining to the same fact which the employer is charging you for. If not, what is the recourse? Answer: The paucity of factual information in your question, particularity around the details of the grievance and the nature of the charge brought against the employee, prevents me from expressing a definitive view. Nevertheless, I shall attempt to assist you and the readers in general by outlining circumstances wherein a dismissal subsequent to, and as a result of, an employee lodging a grievance would be deemed automatically unfair and thereafter, set out the context where a dismissal, under similar circumstances, would be deemed fair. Automatically unfair dismissal In Mackay v Absa Group and Another (2000) 21 ILJ 2054 (LC) the employee referred an automatically unfair dismissal, in terms of s 187(1)(d) of the Labour Relations Act 66 of 1995 (LRA), alleging he was dismissed as a result of lodging a grievance against his superior. Section 187(1)(d) reads: ‘A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is – … (d) that the employee took action, or indicated an intention to take action, against the employer by – (i) exercising any right conferred by this Act or, (ii) participating in any proceedings in terms of this Act.’ On a plain reading of the above section, the question before the court was whether an agreed upon grievance procedure, found in either an employer’s policy or in an employment contract, falls within the ambit of either a ‘right’ or ‘proceedings’ as contemplated in s 187(1)(d)(i) or (ii). Adopting a purposive approach in interpreting the LRA and considering international charters, to which South Africa is a signatory to, Mlambo J held: ‘Therefore in keeping with the main object of the Act, ie of resolving all labour disputes effectively, and with the constitutionally guaranteed right to fair labour practices it must follow that a purposive interpretation of s 187(1) would mean that the exercise of a right conferred by a private agreement binding on the employer and employee as well as participation in any proceeding provided for by such agreement was also contemplated in that section. As in casu, the participation by an employee in a privately agreed grievance procedure, must have been contemplated as a proceeding in terms of this Act, ie when s 187(1)(d) was enacted. This is on the basis that the disputes specifically mentioned in s 187(1) are of the same kind as the dispute in casu.’ Subsequent to this judgment the Labour Court (LC) per Steenkamp J in De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC), followed the principle in the Mackay case. The employee in that matter also relied on s 187(1)(d) when she was dismissed for lodging a grievance against her manager. The employer raised three exceptions against the employee’s statement of claim, one being that s 187(1)(d) does not refer to a grievance as a ‘right’ contemplated in the LRA nor can a grievance be considered ‘proceedings’ envisaged in the LRA. In dismissing this ground the LC held: ‘I am not persuaded that the purposive interpretation adopted by Mlambo J is clearly wrong. It does seem anomalous that an employee in the position of Ms de Klerk or Mr Mackay should not enjoy special protection. Why would a whistleblower enjoy special protection in terms of s 187(1)(h), but not an employee who lodges a grievance in terms of her own employer’s procedures? … In the absence of any finding to the contrary by the LAC, I consider the interpretation adopted by Mlambo J to be sufficiently persuasive not to prevent the applicant from pursuing her claim in those terms. The interpretation in Mackay appears to me to give effect to the constitutional values discussed in the quoted passage. I am not in a position to disagree with the learned judge’s finding on the legal position.’ Fair dismissal However, should an employee lodge a grievance accusing a fellow employee or superior of serious misconduct which, when tested or investigated are deemed false; then an employee making such accusations could well be disciplined and even fairly dismissed. In SACWU and Another v NCP Chlorchem (Pty) Ltd and Others [2007] 7 BLLR 663 (LC) an employee was dismissed for falsely accusing his manager of being a racist. An arbitrator found his dismissal substantively fair and on review, the LC held the following: ‘One can hardly think of many, if any, circumstances under which an employee who has been found guilty of being a racist or displaying racist attitudes to fellow employees will avoid being dismissed. This is likely to be so as one can hardly imagine that any employer could reasonably be expected to continue to employ such offending employee in the workplace. It is likely to cause racial disharmony. I believe it is similarly difficult to imagine under what circumstances an employee who without just cause or a reasonable basis therefore, and accordingly unjustifiably, accuses another employee of being a racist, or that he or she was displaying a racist attitude, would easily escape dismissal. Such conduct strikes at the heart of racial harmony. It cannot be emphasised enough that to accuse somebody of being a racist, or of displaying racist attitudes, is to be regarded as a very serious allegation.’ While your question speaks to procedural fairness, the primary inquiry in my view, turns on the substantive fairness of disciplining an employee after having lodged a grievance. If there were genuine grounds to lay the grievance and it can be shown, at a prima facie level, that dismissal was imposed with punitive intent, then the dismissal may well be automatically unfair. If, however, it is found that there was no reasonable basis for lodging a grievance and it was the employee who lodged the compliant with malicious intent, then dismissal under these circumstances may well be deemed fair. This article was first published in De Rebus in 2017 (April) DR 41.
http://www.derebus.org.za/
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AuthorTimothy van Rooyen Port Elizabeth Attorney, He has extensive knowledge in the industry, specialising in Divorce Law. Archives
August 2023
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