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WATCH WHAT SURETYSHIPS YOU SIGN!
In yet another example of the dangers of signing legal documents without reading and fully understanding them, a surety who signed unlimited suretyship for a bank loan to his son's trust has been held liable in the High Court for the full claim, although he apparently thought he was only committing himself for a maximum of R50.000. If you don't understand any legal document, don't sign it without proper advice.
FIXED TERM EMPLOYMENT CONTRACTS - THE RISKS
Employers who engage staff on fixed term employment contracts need to understand the risks of doing so. Recent Labour Court judgments have highlighted two of them: -
- If the employee is able to show that he/she had a reasonable expectation that the contract would be renewed on the same or similar terms, failure to renew will amount to dismissal in terms of the Labour Relations Act (it is then for the employer to prove that the dismissal was fair).
- A fixed term contract cannot be terminated early for operational reasons - so you carry the risk if for some reason it turns out that you don't need the employee for the full term of the contract.
Fixed term contracts have their place, but ensure that they are properly drawn, and used only where appropriate.
AGENTS' COMMISSION AND EFFECTIVE CAUSE - THE TIME FACTOR
An agent or broker is entitled to commission if he/she is the "effective cause" of the sale, even if the parties eventually cut the agent out and conclude the sale agreement directly between them. The agent's claim remains good unless "the chain of causation between the introduction and the sale has been ruptured" by "a sufficiently weighty intervening cause". What is or isn't "sufficiently weighty" has been the subject of much litigation, and will be judged by the courts with reference to all the circumstances of each case.
One factor is how much time has elapsed between the introduction and the eventual sale - and it seems that in the case of a "consumer durable" (such as an aircraft per a recent Supreme Court decision) a relatively short delay will weigh more heavily against an agent than in the case of immovable property.
There are grey areas here and a lot can be at stake, so get advice if there is any possibility of a commission claim in the wings - particularly where the intervention of a second agent puts you at risk of paying double commission.
DOGS BEHAVING BADLY
Another warning to protect yourself from liability for the actions of your domesticated animals - even when you haven't been negligent - comes in the form of a recent High Court judgment where the owner of a dog was held liable for its having bitten a child, even though an expert testified that the dog's behaviour was instinctive and to be expected (the child fell onto the dog and probably gave it a fright).
Its behaviour, said the Court, must not be assessed "from its point of view", but according to an objective standard - the fictional "reasonable dog" (fictional because the courts do not actually ascribe powers of reason or logic to animals). The law "expects domesticated animals not to revert to their former wildness. They must suppress instincts which on the face of it are 'natural'".
In essence, if Rover doesn't live up to the standard required of a "well-behaved domesticated animal", and causes damage, you are going to have to cough up.
SEASIDE RISK AND OPPORTUNITY: A CAUTIONARY ON COASTAL PROPERTY
What effect will the Integrated Coastal Management Bill (now released for comment), have on coastal property values? The media initially reported that the Bill would impose restrictions on foreigners buying coastal property; it doesn't, and government has retracted statements that such legislation is being mooted. But a perception of risk has arisen, and whether or not that perception will have an impact on the market remains to be seen.
Quite apart from that, the Bill itself has provisions that may impact substantially on the desirability and value of some coastal properties, principally: -- Public access to coastal areas is to be mandatory - over private property where necessary
- Land use will be regulated and restricted in "coastal buffer zones" (100m above high-water level in urban areas and 1km in rural areas)
Regardless of what the eventual Act looks like, if you are considering dealing in any coastal property, you would be well advised to do so with caution - changes in the law lie ahead and there is both opportunity and risk in the wind.
WHERE THERE'S SMOKE………BEES, FIRES AND LANDOWNERS' LIABILITY
In "Your Patch Of Rural Paradise: The Risk" (LawDotNews November 2005) we discussed the strict fire prevention duties imposed by law on anyone who owns, occupies or controls land which has veld or forest on it. You are presumed to be negligent, not only if a fire is caused by you, but if it starts or spreads from your land.
The dangers of not complying with your statutory requirements in this regard have again been illustrated in the Supreme Court, in a case where a beekeeper negligently started a fire on farmland whilst bee-smoking. The landowner was held to be jointly negligent with the beekeeper, for failing to create and maintain the required firebreaks, and for failing to provide fire-fighting equipment.
PAIA - ACTUAL RECORDS REQUIRED
The Promotion Of Access To Information Act entitles you (subject to a few common sense limitations) access to any records held by any organisation where you can show that you require them "for the exercise or protection of any rights". And you cannot be fobbed off with a statement by the record holder as to what they say is in their records - the Supreme Court has now held that you are entitled to the actual records.
WHEN ARE GIFT PAYMENTS TO STAFF TAXABLE?
Is a payment to an employee ex gratia (i.e. without a legal obligation to pay) subject to income tax as "gross income"? It is, says the Supreme Court in a recent decision, if the payment was motivated by a desire to give the employee a benefit in recognition of service. There must be "an unbroken causal relationship between the employment on the one hand and the receipt on the other."
WEBSITE OF THE MONTH: NEW YEAR RESOLUTIONS
"A New Year's resolution is something that goes in one (Y)ear and out the other" (Author Unknown).
For a psychologist's advice on how to turn those Resolutions into Realisations, go to About.com's website at http://mentalhealth.about.com/od/selfhelp/a/newyears.htm.
Health, Happiness and Success in 2007!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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