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GREY GOODS - RETAILERS MUST DISCLOSE!
Grey goods are genuine branded goods, imported legally, but "grey" because the distributor is not authorised by the manufacturer - as a result, the manufacturer is under no obligation to honour its warranties and after-sales support. Many consumers are happy to accept that risk in return for paying a lower price, but you can't make an informed choice in this regard if you don't know whether that TV / washing machine / motorbike you have your eye on is "grey" or not.
Now the DTI has declared it an "unfair business practice" for sellers of grey goods not to alert consumers, in all their advertising, promotions (including in-store promotions), websites and brochures, to the status of the goods, and to the resultant effect on the warranties/guaranties and after-sales support. A format is prescribed, and substantial criminal penalties are provided for failure to comply.
FREE HOUSING FOR EXPATRIATES - WHEN IS IT TAX-EXEMPT?
An expatriate whose housing in South Africa is provided free does not as a rule have to pay tax on the fringe benefit. SARS has always in practice limited the exemption to assigned expatriates where their period of stay or assignment in the Republic is twelve months or less, but recently the Tax Court allowed exemption for an expatriate on a two-year contract that was extended by another eight months.
So it seems that unless and until amending legislation imposes a time limit, the only requirement is that the expatriate's "usual place of residence" remains in his/her home country. It is here that a bit of a grey area comes into play, and expatriates and their employers should take advice on whether an employee's "ordinary residence" will be taken to have moved to South Africa in particular cases.
SUPPLIERS - WHERE NOT TO PRINT YOUR TERMS AND CONDITIONS
In a recent case, a manufacturer was found liable for substantial losses (potentially over R13m) suffered by its customer as a result of a supply of defective goods. This liability could have been avoided had its contractual documentation been properly drawn, and correctly used.
The manufacturer had printed an exclusion of liability clause on its invoices and delivery notes (you often see that with exclusion or other terms - normally in fine print!), and had a long course of dealing with the customer in question.
But that wasn't enough to bind the customer to the exclusion - the Court held that no recipient would expect to find contractual terms in such documents; terms can only be imposed in the actual supply contract itself. If you want to add another term or condition later, it must actually be brought to the attention of the customer, and agreed to.
EMPLOYERS TAKE HEED - DISCRIMINATION AND HARASSMENT IN THE WORKPLACE WILL COST YOU
As an employer, you have a duty to protect your employees from racial discrimination and from sexual harassment. Failure to do so could land you with a substantial claim for compensation from the victim/s.
In a recent Labour Court decision, a company's failure to prevent racism in the workplace (racial remarks made by employees) was held to constitute "direct and unfair discrimination against persons based on their race, ethnic and social origin as foreseen by section 9(3) of the Constitution".
Similarly, the Supreme Court last year awarded substantial damages to an employee who had been subjected to sexual harassment by a fellow employee, because the company failed in its legal duty to maintain a working environment free of such harassment.
If you haven't already put effective workplace policies in place to protect employees from these types of unfair practice, you need to do so immediately; and you need to enforce them vigilantly.
"CLEAN BREAKS" AND MAINTENANCE
On divorce, the law encourages both parties to become financially independent - in accordance with this "clean-break" principle, maintenance payments for an ex-spouse are not normally granted for extended periods of time. The Courts prefer a division of assets or a lump sum settlement to be paid in lieu of ongoing maintenance.
When will the clean-break principle not be applied? Two recent cases illustrate: -
- A mother was awarded maintenance for up to ten years to enable her to care properly for her children (only possible if she was able to limit her involvement in her business).
- An ex-wife with limited earning capacity was awarded maintenance until her death or re-marriage - but only enough to top up her income to a reasonable level.
Note: none of the above applies to child maintenance, which is normally ongoing for as long as necessary.
ALL YOU NEED IS LOVE......... AND AN ANC
The recent media speculation regarding Sir Paul McCartney's possible divorce from his second wife suggests that, as a result of the couple's failure to enter into an ANC (ante-nuptial contract), she could walk away with as much as £200m - quite a tidy sum after only 4 years of marriage. Whatever the eventual outcome, the story has focused attention on the need for South Africans who are about to tie the knot to carefully consider the financial consequences of marriage.
If you get married without an ANC, your marriage will be in community of property. With an ANC, you can choose rather to be married out of community of property, with or without accrual. Deciding which system to choose is not necessarily a simple one, and factors such as age, financial status and prospects, cultural background etc. may all come into the equation. So take advice before you make that final commitment!
NO FISHING ALLOWED!
PAIA (the Promotion of Access to Information Act) is a powerful tool for obtaining any information you may need from another party to enforce your rights. But, the Supreme Court has now held, PAIA cannot be used by a prospective litigant for a pre-trial "fishing expedition" where the information sought is already available from another source - the established procedures for litigants to obtain disclosure of documents must be followed.
WEBSITE OF THE MONTH: THE SLEEP PAGE
Recent research shows that most of us don't get enough sleep. That isn't good. Sleep deprivation handicaps us at every turn by reducing our ability to perform at our peak effectiveness. In addition, it is thought to compromise the immune system, and to increase the risk of such afflictions as heart disease, high blood pressure, diabetes, obesity, and even clinical depression.
To find out whether you get enough sleep, take the Sleep Profiler on the BBC's Sleep Page at www.bbc.co.uk/science/humanbody/sleep
The site also offers articles on how and why we sleep, solutions for common sleep problems, tools to help you discover your Circadian rhythm, and alertness and memory tests.
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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