April 17, 2020
“The secret of crisis management is not good vs. bad, it’s preventing the bad from getting worse” (Andy Gilman)
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 on our country.
One of those steps is for businesses to find ways of continuing to operate as normally as possible, given of course the exceptional times we are living through. And as employers, many businesses will find themselves facing some novel challenges, particularly during the National Lockdown…
Small businesses – the new relief programs
A whole raft of support and relief programs has been announced. Some still need to be finalised 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 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 firstname.lastname@example.org to see if you quality. 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 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 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 travelling 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 and every one of those questions.
April 17, 2020
Gooday fellow lockdown citizens.
Three weeks of lockdown has come and gone. So far two more weeks to come. In the midst of a flood of information, and emotions, I wish to share a conversation about the meaning of the word Monk.
This story was told to me by Dr.Corne Bekker.
In early Christianity, Christians were referred to as Monks. (fancy that). In Greek or Hebrew (I cannot remember) it has two meanings:
Solitude and togetherness. Quite the opposites, is it not? Or maybe two poles of sameness.
Solitude is the state of being by yourself. Being alone. It is a verb, an action. A state of being busy with yourself, your thoughts. A perfect opportunity to learn to know yourself a little better. A time to grow yourself. Most importantly to learn to be comfortable with time alone with you, myself and I.
Togetherness the quality state of being together. Warm fellowship among family members. My eye catches the “QUALITY state of BEING”. It is an action taken by individuals of being in fellowship with each other. Here we find opportunity to being part of community, family, and friends.
What is the link that brings the opposites together? Dietrich Bonhoeffer wrote that without solitude there cannot be quality of togetherness. It means that if I am comfortable with spending time alone in solitude, I then can contribute to community in a much more meaningful way. It help us to grow from being dependent on each other to being interdependent on each other. Solitude gives us the opportunity to grow our quality state of being together.
Let us join in solitude so we can enjoy being together on much higher levels than before lockdown. Our new world after lockdown is in need of exactly this.
Roy Kapp | Director
April 17, 2020
“The primary remedy therefore is an order for removal of the structure” (extract from the judgment below)
What can you do if your neighbour has started (or finished) building without the necessary municipal approvals?
In a nutshell, our courts will very probably assist you with a demolition order, as a recent High Court decision around a long-running property encroachment illustrates.
The 16 year saga of an encroaching garage
- A couple, owners of a property next to a church Mission, expanded their house in 2004 by building a brick garage.
- They thought they were building on their own land, having in 1998 built a wall along what they genuinely – but mistakenly – thought was the correct boundary between the two properties.
- As we shall see below, their fatal mistake was building their garage without municipal plans or approval.
- In fact the garage was inadvertently built on Mission land, but the Mission was having none of that –
- First in 2012 it asked the couple – and another neighbour in the same position – to demolish.
- When the couple refused (the other neighbour complied) the Mission in 2014 laid criminal charges against them for failing to comply with the relevant Act (the National Building Regulations and Building Standards Act). These charges, for purely technical reasons, failed to stick.
- On pressed the Mission, this time turning to the local municipality for help in 2016. The municipality duly issued a formal Notice requiring demolition of the garage as it had been erected illegally without plans or permission. The couple simply refused to either receive the Notice or to remove the encroaching garage.
- Which brings us to the High Court in 2017, with the Mission applying for a demolition order and the couple asking the Court to rather order the Mission to transfer the relevant piece of its land to them against payment of reasonable compensation.
What about alternatives to demolition?
A court deciding a demolition application has “discretion to reach an equitable and reasonable solution in terms of the common law by ordering payment or compensation rather than removal in cases where the cost of removal would be disproportionate to the benefit derived from the removal”.
In this respect said the Court (emphasis supplied) “the encroaching owner’s own conduct plays an important role” and “while one is acutely aware of the financial implications, inconvenience and disruption which the partial demolition will cause the [couple], the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations.”
Commenting on the couple’s “obstructive behaviour” in this case, and finding that they “are indeed in legal and administrative breach of the law … to allow them to keep the structures where they are, would be to perpetuate the illegality”, the Court ordered the couple to demolish their illegal garage within 90 days.
So if you are the neighbour planning to build…
Whilst the case in question deals with encroachment on another’s land, our courts have applied exactly the same principles to a wide variety of “neighbour dispute” cases – sea view obstructions, failure to observe building lines and the like.
So don’t even think of starting to build without having all necessary municipal plan approvals and permissions in place!
And if you are the objecting neighbour…
The couple in this case put up an argument that the Mission couldn’t demand demolition as it had “acquiesced in their occupation of the relevant land because it did not object when they built the wall on the church ground in 1998, and did not complain when they built the ‘offending’ garage in 2004 or 2005.”
Factually the Mission’s long history of actively objecting to the unlawful construction put an end to that argument, but the longer you delay in objecting and taking action the greater your risk of facing a similar argument. Take immediate action against any neighbour building unlawfully.
April 17, 2020
If you live as a couple, avoid the trap of believing the myth of the “common law marriage”. It’s a very persistent myth, possibly because some other countries do indeed give formal recognition to certain forms of life partnership.
But not in South Africa – there is no such thing in our law as a “common law marriage”. No matter how long you have lived together, if you break up or when one of you dies, neither of you automatically has any of the rights and protections afforded to a couple in a marriage or civil union.
Apart from the personal consequences the financial downsides can be huge, and our courts are all too often faced with sad and bitter disputes which end with one of the partners destitute and homeless after decades of cohabitation.
A recent High Court case highlights the financial dangers…
22 years on, a couple splits
- For most of 22 years, with only a short early separation, a man and woman “in a romantic relationship” lived as a couple, in a household complete with the woman’s daughter from a previous relationship.
- They had been jointly involved to one degree or another in a series of business ventures including vegetable farming (on a farm purchased in the man’s name), commercial blasting, a bakery and a packaging business, and what was at stake in the High Court was whether the woman could prove her claim to a 50% share of the resultant assets.
- The facts were bitterly disputed, with the man adamant that the relationship had been nothing more than co-habitation as lovers. But eventually the Court concluded, on the basis of the facts that it found proved, that “the parties intended to pool their resources for the benefit of a joint estate” and that the woman had accordingly proved the existence of a “universal partnership”.
- Not however to the 50/50 extent she claimed, and the end result is that at age of 47 and after 22 years she leaves the relationship with only 30% of the net assets. Hard though that may seem, she could easily have been left with nothing, as we shall see below when we look at what our law says about such relationships.
The difficulty of proving a “universal partnership”
The problem in such a case is that you have to prove a lot more than just cohabitation.
You also need to prove the existence of a “universal partnership” and that, as many cases in the past have illustrated, is not easily achieved, not least because the onus is on you to prove your case. You will need to prove all of the following –
- Each of the parties brought something into the partnership, or bound themselves to bring something into it, whether it be money or labour skills;
- The business had been carried on for the joint benefit of both parties;
- The object was to make a profit; and
- The partnership contract was legitimate.
If, as is common in this sort of situation, you rely on a “tacit” agreement (an unexpressed agreement inferred from your actions as a couple), you have to go further and prove that –
- The other person was fully aware of the circumstances connected to the transaction;
- The act relied upon was unequivocal; and
- The tacit contract does not extend beyond what the parties contemplated.
Again, not easily proved, as “A tacit contract will be interpreted strictly and not extensively, since a contract must be interpreted in favour of the person on whom it is sought to place an obligation.”
The good news – there’s a simple solution…
We have talked above only about the financial consequences of life partnerships which are unregulated by agreement. But formal marriage also provides a range of other legal benefits and protections (such as rights of inheritance and support and other personal aspects of your relationship) which are not automatically available to you.
Fortunately you can avoid all the risk and uncertainty of an unregulated relationship with a quick and simple solution – a formal cohabitation/life partnership agreement.
Just be sure to get it in place early on. Take professional advice (jointly – this is to protect you both!) as soon as you commit to a long-term relationship.
April 17, 2020
“Never let a good crisis go to waste” (Winston Churchill)
The COVID-19 coronavirus crisis will, like all crises, eventually give way to economic and societal recovery.
Even before that inevitable upturn actually sets in, entrepreneurs should remember that times of great risk and challenge are also times of great opportunity. So get your team together now and brainstorm what new needs and new niches you can fill. Witness for example the “remote destination” businesses like game lodges now offering safe and luxurious havens for those wanting to self-isolate and to practice social distancing far from the city hotspots. That’s a win-win for everyone – businesses, their employees, their clients, and their suppliers.
And when a sustained recovery does make its welcome appearance, make sure that you are way ahead of the pack by using this current time of fear and negativity to maximise your planning. What will the recovery look like? How will you take advantage of it? What staff and resources will you need?
Get off to a good start with “Growth opportunities for small business in SONA and the Budget” on the Catalyst Magazine website which highlights some of the many opportunities still open to businesses big and small –
- The Infrastructure Fund
- The Tourism Equity Fund
- The African Continental Free Trade Area
- Incentive Programmes For Small Businesses