Matthews Enslin Inc.'s Monthly Newsletter

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Landlord Liable for a Tragic “Freak” Flood Drowning
Landlords need to be aware that they risk being sued if their tenants suffer any loss whilst on their premises.

We discuss the principles involved with reference to the tragic High Court case of a toddler drowned when the riverside chalet in which his family was holidaying was subjected to a “freak” overnight flood. The Court had to decide whether or not the guest farm owner was liable for damages, and in doing so it examined the core questions of whether the owner was guilty of “wrongfulness”, and if so, was he negligent? 

We end off with some thoughts on practical steps every property owner should take to minimise the risks of anything going wrong, and of being sued if it does.
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Employers: Beware the “Casual Worker” Myth!
ArticleImage If you employ anyone, whether as a business or as an individual, you will understand how strongly employee rights are enforced in South Africa, and how essential it is to comply with all applicable legislation.

A dangerous myth in this regard is the idea that somehow there is a class of employees, usually referred to as “casual workers” or “casual labourers”, that falls outside these protections.

We examine this myth and its historical roots, setting out the correct legal position relating to employees who work for you less than 24 hours per month, and close with comparative references to instances of limited protection and to independent contractors. 
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Companies: Are Restraints of Trade Valid in a Time of Covid?
ArticleImage As a business, you could be in real trouble if a director or senior employee, privy to all your confidential information and trade secrets, suddenly ups sticks and joins the opposition, or perhaps even starts up their own new business in direct competition with you.

We discuss the use case for restraint of trade clauses, which have historically proved a useful shield against this sort of business risk.

But will our courts enforce such clauses in these hard times of the Covid-19 pandemic with its attendant lockdowns, economic turmoil and high unemployment? Two recent High Court decisions may signal which direction our law is taking in that regard…
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Extended: The Rights of Grieving Parents to Choose Burial After Pregnancy Loss
ArticleImage Expectant parents who lose a pregnancy before 26 weeks (the age set by the Births and Deaths Registration Act (BADRA) in its definition of “still-born”) have until now had no right to bury their foetus, which had to be incinerated as “medical waste”.

That has changed with a recent High Court order declaring the relevant provisions of BADRA unconstitutional. That order is suspended to give Parliament an opportunity to amend BADRA, plus it must also go to the Constitutional Court for confirmation. But in the interim the Court has allowed burial (via the issue of a “stillbirth certificate” or “declaration of stillbirth”) on request by the bereaved parent or parents. 

The Court declined to extend this new choice to foetal deaths resulting from human intervention (“voluntary induced termination”) so for now at least this new freedom to choose is available only to grieving parents in the case of natural deaths (miscarriages).

Your Website of the Month: Protecting Yourself and Your Business in Flu Season 2021
ArticleImage Flu season is upon us again, and it is not to be underestimated with between 7,000 and 12,000 flu-related deaths historically reported in South Africa every season. Whether or not this year’s lockdown precautions will reduce infection levels to the same extent that they did last year, take the time to make sure that you, your family and (if you are in business) your colleagues and employees are prepared.

Go to Medical News Now for “Evidence-based resources to help keep you and your loved ones healthy during the 2020–21 flu season” on its Flu page (its “Flu v Covid-19” section is particularly informative).

Be aware that there could be a run on the flu vaccine with articles like “Flu shots linked to fewer severe Covid-19 cases - US study” on News24 doing the rounds. 


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The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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