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"BABY BOOMERS" 65 SOON: AVOID AGE DISCRIMINATION!
"Will you still need me
Will you still feed me
When I'm sixty four five?" (With apologies to the Beatles) With the first wave of Baby Boomers turning 65 next year, employers and their employees need to understand the rules relating to compulsory retirement age. In a nutshell, forcing someone to retire at 65 could - unless our labour laws are strictly complied with - amount toautomatically unfair discrimination on the grounds of age.
And businesses will pay dearly for getting it wrong. For example the Labour Court recently ordered an employer to pay maximum compensation (a full 2 years' remuneration, with punitive costs) to an employee who, having been employed at the age of 63, was forcibly retired at 65.
In this particular instance, the employer claimed to have had a standard retirement policy in force, but couldn't prove it. All employers should, to avoid any possible doubt, follow these principles:-- Formulate a properly drawn and recorded retirement policy
- Stipulate a compulsory retirement age upfront in all new employment contracts
- If your existing employment contracts don't stipulate a retirement age, negotiate one now - today. Note that you cannot unilaterally impose a new term like this on employees; it must be negotiated.
The stakes are high here - take advice in doubt.
LUXURY AND SECOND HOMES: NO PROTECTION FROM SALE IN EXECUTION
Good news for creditors comes from a recent High Court case in which a debtor failed to have a sale in execution of one of his two houses reversed on the basis of his constitutional right to adequate housing.
The warrant of execution had been issued by a court official without "judicial oversight", which, per a Constitutional Court decision in 2004, is necessary whenever a debtor is being deprived of his/her only access to "adequate housing". The court itself - not a court official - must then consider whether such deprivation is justifiable in the particular circumstances, putting at risk the creditor's chances of recovery.
However the Court in this case upheld the execution sale, making it clear that "luxury" or "holiday" homes would not enjoy this constitutional protection. The residence in question was a second house occupied not by the debtor himself (he resided in his other house), but by other occupants, and his creditor was therefore free to proceed as he did.
VITAL EVIDENCE ABOUT TO BE DESTROYED? ACT IMMEDIATELY!
What do you do if you suspect that someone you are suing (or are about to sue) is on the verge of hiding or destroying vital evidence in his/her possession?
Act immediately - our law has a remedy for you in the form of an "Anton Piller" order, whereby the Sheriff of the Court is authorized to search for, and seize into safekeeping, the relevant evidence.
But this is a drastic and draconian remedy. No advance notice is given to the other party, who is accordingly liable to suffer an unannounced and substantial invasion of privacy. Exactly that happened in a recent High Court case involving a search in the other party's home, as well as at her office.
Bearing in mind our constitutional right to privacy, whilst the remedy itself is not unconstitutional, the courts require that very strict guidelines apply to its use. Thus, held the Court, the "sole purpose" of an Anton Piller is the "preservation of vitally needed evidence for use in an already identified claim" - for which reason the evidence to be seized must be both clearly specified and "centrally relevant" to the claim.
Finding that in this particular case the order was too widely framed and thus amounted to "an impermissible fishing expedition", the Court discharged the order with costs, refusing the applicant's request that it rather be "trimmed down" to a more reasonable ambit. If it's too wide - if it "materially" exceeds what the law permits - it has been "unlawfully obtained", and is invalid.
DANGEROUS ROADS, DANGEROUS LAWS
What happens if you are seriously injured or killed in one of South Africa's many traffic accidents? How do you and/or your dependents continue to survive financially?
Under the old Road Accident Fund Act, if the other party was at fault, you could claim against the Fund for your full (i.e. actual) losses. The controversial amendment to the Act - in force since 2008 and recently declared by the High Court to be constitutional and valid - has changed all that.
The Court's decision is being appealed, but in the interim you and your family must live with the following: -- Claims for loss of income or support are limited to R 178 642 p.a. (R14.886 p.m.),
- Your claims for pain and suffering, disfigurement etc, have been greatly restricted,
- Your hospital and medical expenses are limited to provincial hospital rates,
- If you have shortfalls after claiming as above, you are stuck with them - there is no claim against the other driver or vehicle owner.
If R14.900 isn't enough to cover your family's monthly living expenses, you need to urgently think about how you and/or your dependents will be able to make up the shortfall. Consider personal accident, disability or income replacement insurance for the balance. And if you want medical care at private level, check that your medical aid will cover it!
CO-OWNERS COME TO BLOWS? COURTS TO THE RESCUE
Co-ownership of immovable property can be problematic, particularly if and when you and your co-owner/s decide for whatever reason to part company, but cannot then agree on how to divide the property.
Fortunately our courts will come to your rescue with a wide discretion to make any order that is "fair and equitable in the circumstances". Some of the orders a court might make include: -- Subdivision of the property if feasible, or
- Transfer to one of the co-owners against payment of a specified price to the other/s, or
- Sale of the property and division of the net proceeds between the co-owners. For example, the High Court recently ordered a property to be put up for sale firstly by public auction with a reserve price, and then - if the auction produces no sale - via an estate agent.
The court can also make any "equitable adjustment" between co-owners where one of them has had occupation or a financial benefit from the property, or borne any expenses relating to it (e.g. rates and taxes).
Note that where owners have agreed not to terminate the co-ownership for a period of time, this will be enforced. But any agreement to co-own in perpetuity is invalid, as no one can be forced to remain a joint owner indefinitely against their will.
Before opting for co-ownership of anything, take legal advice. Ideally enter into a properly-drawn agreement upfront to avoid any possible disputes, both during the co-ownership and on its termination.
VEXATIOUS LITIGANTS: RED CARD THEM!
Recent media reports have suggested that property developers in particular can use "new vexatious legislation" to take action against anyone who causes a developer financial loss by groundlessly objecting to a development scheme.
In reality there is no such new legislation around, and whether or not a developer will have a claim against a vexatious objector will depend on the normal rules relating to claims for damages - no changes there.
Of interest however (to everyone - not just developers) is the totally separate concept of outlawing "vexatious litigation". Between the common law and a 1956 piece of legislation aptly titled the "Vexatious Proceedings Act", you can indeed protect yourself from the proverbial "vexatious litigant". In summary, courts have the power to prevent abuse of their process both in individual proceedings and generally: -- In specific cases, a court can quash vexatious proceedings summarily, and
- More generally, a court may require that its leave be obtained before any new legal action is instituted by any person who has in the past "persistently and without reasonable ground instituted legal proceedings" against anyone else.
The courts are generally slow to grant such orders, but if you are being unfairly harassed via a barrage of groundless litigation, this may be your escape route.
THE JULY WEBSITE: PLANNING FOR SUCCESS WITH VISUAL AIDS & THINKING GUIDES
"Failing to Plan is Planning to Fail"; and that applies as much in our personal lives as it does to our businesses.
Clear, creative thinking being the well-spring of all successful planning, you should maximize it with visual aids such as the interactive analytical tools and "thinking guides" - flow charts, diagrams and conceptual maps - on the exploratree website at www.exploratree.org.uk. Find what you need under these headings: -- Map Your Ideas
- Solve Problems
- Explore
- Analyse
- Different Perspectives
It's all free, and don't be put off by the fact that these tools were developed for schools and students - they are an excellent resource for high-level planning and problem solving of all types.
If you're unsure where to start, try the 'Futures Wheel' template ("Think through the consequences and impacts of an event. What are the knock on effects?").
ENJOY JULY! (And if the winter cold is biting, take comfort in the old Norwegian adage: "There is no such thing as bad weather, only bad clothes")
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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