“The greatness of a nation and its moral progress can be judged by the way its animals are treated.” (Mahatma Gandhi)

For many of us our pets are a central part of our lives, our much loved “fur babies”, our companions, exercise partners, even therapists through the hard times.

But what will happen to them after we die? Or if we lose the ability to make the decisions necessary for their welfare? Unless you make specific provision for your beloved pets to address these situations, their fate could be a grim one. When you die for example, the executor of your estate will have no option but to hand pets over to your heirs as “property”. And if your heirs are unable or unwilling to give them a good home and have no guidance from you as to what your wishes are, your beloved pets could end up needlessly euthanised or in a shelter.

Let’s look at a few ways you can avoid that -

A “Living Will for Pets”

In the “when you are gone” section below we will discuss options that only apply after your death, but in contrast a “Living Will” applies when you are still alive but no longer able to make your own decisions.

Thus, your own personal “Living Will” or “Advance Medical Care Directive” sets out what medical treatment you consent to receiving when you are no longer able to speak for yourself.

Similarly, you may want to do something like that for your pets, setting out what is to happen to them when you are no longer able to make such decisions yourself. You could leave specific care instructions (including perhaps veterinary care instructions and authority for euthanasia in specific circumstances) or you could appoint a trusted heir or animal welfare organisation to make those decisions for you. Note that you cannot leave money or assets to anyone in a living will – bequests can only be made in your actual will.

Three alternatives for when you are gone

1. A clause in your will: As “property”, your pets cannot inherit from you, but you could provide in your will (“Last Will and Testament”) for a named heir to inherit them, ideally with a bequest to help them cover the costs of pet ownership. Make sure your chosen heir is on board with your plan!
   
   
2. A directive - in your “important information” file, or in a separate letter of wishes: In addition to your will, you should always leave your executor and heirs a comprehensive file of important information and documents to assist them in winding up your estate. It should include a “My directives” section with instructions as to what is to happen to your pets. Alternatively, you could set that all out in a separate “letter of wishes”. These directions aren’t legally binding on anyone, but they do provide guidance to those winding up your affairs as to your wishes.
   
   
3. A testamentary trust: This will be overkill for most situations, but if you want to leave a lot of money to care for your pet/s, you might be advised to set up a testamentary (i.e. set up in your will) trust. You would appoint trustees to manage a bequest to the trust, with guidance on how the money is to be spent for your pets’ benefit.

“He who is quick to borrow is slow to pay” (Old proverb)

A recent High Court decision means that, for the first time, creditors of debtor companies are specifically cleared to apply for the company’s directors to be declared “delinquent” in certain circumstances. And that has significant implications for both directors and creditors.

For directors – major long-term career risks

Company directors need to manage a whole range of duties, responsibilities and risks, including being declared “delinquent” in terms of the Companies Act. For more serious categories of misconduct a director risks disqualification from holding any directorship or senior management position for a period ranging from 7 years to a lifetime.

A wide range of less serious categories of misconduct can lead to “probation” orders, with possible disqualification for up to 5 years, supervision by a mentor, remedial education, community service and payment of compensation.

The fact that creditors can now make delinquency applications adds a new level of director risk, the reality being that of all the stakeholders out for blood after a corporate failure, unpaid creditors may well be the fiercest. Your best defence against any personal attack is to always be aware of, and to scrupulously comply with, all your many fiduciary duties.

For creditors – a new door opens

As a creditor on the other hand, your chances of recovering a company debt from a director personally will depend on a range of factors – whether you hold personal suretyships, whether you can prove personal liability for breach of statutory duties and so on (this is a complex topic – specific legal advice is essential).

Now another door has opened to you, and although as we shall see below you will have to convince the court that you are acting in the public interest, it will certainly make directors think twice about defrauding you or exposing you (and creditors and the public generally) to loss through corporate misconduct.

• The case in question stems from the creditors of a company in liquidation failing to recover their debt from it, and consequently taking action against the directors in their personal capacities for over R370m.
  
  
• They also asked the High Court to declare the directors delinquent, and one of the directors objected on the basis that creditors have no power to bring such an application. Indeed, the Companies Act gives this right only to a specific list of stakeholders - namely a shareholder, director, company director, secretary or prescribed officer, registered trade union, employee representative, Takeover Regulation Panel, some organs of state and the CIPC (Companies and Intellectual Property Commission).
  
  
• The Court however agreed with the creditors that they could apply under another provision of the Companies Act which allows anyone to apply “acting in the public interest, with leave of the court”. On the facts of this particular matter, the creditors were cleared to proceed under that provision.
  
  
• In reaching this decision, the Court took account of the (as yet unproven) serious allegations levelled against the directors – extreme breaches of fiduciary duty over a long period of time and involving substantial amounts of money, “a full panoply of misdemeanours” including gross abuse of position and gross negligence, the large number of directorships held by the directors, the (indirect) involvement of public entities – the list goes on.
  
  
• Importantly, the Court rejected the director’s argument that “the danger of giving the creditor such standing was that it could use the threat of a delinquency declaration to squeeze the proverbial few extra bob out of the directors.” Every case, said the Court, must be decided on its own facts, and the fact that creditors are suing directors personally does not automatically mean that they are acting cynically and opportunistically.
  
  
• But clearly, to succeed you will have to prove that you are acting in the public interest and not just in your own interest as a creditor. It will help to be able to argue, as the creditors in this case did, that “the general public and creditors deserve and require to be protected in their dealings, engagements and transactions with the companies and close corporations of which the defendants are respectively directors and/or members; and … the relief will protect the public from the defendants repeating or replicating their delinquent conduct in other entities.”

“…moonlighting as a matter of principle is unacceptable…” (extract from judgment)

Up to a quarter of all middle-class South Africans are reported to “moonlight”, that is to run a part-time side hustle or side business in addition to their full-time jobs. Some, it seems, go one step further and manage to hold down two full-time jobs simultaneously. No doubt the pandemic-accelerated increase in remote working has enabled that trend as much as financial pressures on employees have fuelled it.

But, as the Labour Court has once again confirmed, moonlighting without permission risks instant dismissal.

“Juggling two jobs” leads to dismissal after an anonymous tip off

• A “highly qualified and academic” employee held down two part-time lecturing jobs, one with a university. The university had consented to this arrangement, so all was well at that stage.
  
  
• However, she thereafter elected to resign from her second part-time job and to take up full-time employment as a lecturer “in a senior position of trust and responsibility” with the university at an annual salary package of R787,520. Almost immediately after that she took on another full-time job as an accounts director at a data consultancy, this time at an annual salary of R1,100,004. Critically, this time she did so without seeking the university’s authority to do so.
  
  
• We will never know whether or not the employee might perhaps have got away with juggling these two full-time jobs for any length of time, because after only a month an anonymous tip-off put an abrupt end to her scheme.
  
  
• The university convened a disciplinary hearing and she was dismissed after being found guilty of gross misconduct for taking up a second full-time position without the university’s knowledge or authority, in breach of her duty of good faith to the university and of its “Policy on the Declaration of Interests”.
  
  
• She referred the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration) which held her dismissal to have been both substantively and procedurally fair – which decision she referred to the Labour Court on review.
  
  
• Unimpressed with the employee’s defence that she could manage the two positions, that she did not think it would prejudice the university, and that she saw no conflict of interest, the Court agreed that she had been guilty of “extremely serious misconduct” and upheld her dismissal.
  
  
• Rubbing salt into her wounds, the Court ordered her to pay the university’s legal costs (unusual in labour law matters).

Moonlighting - a breach of duty and good faith

The Court’s findings apply to all employment contracts, even those without specific moonlighting policies in place, because of the breach of trust inherent in unauthorised moonlighting. To quote the Court in bullet point form -

• “In simple terms, moonlighting as a matter of principle is unacceptable, and a breach of an employee’s fiduciary duties towards the employer.
  
  
• It must always be the sole prerogative of an employer to decide whether to allow this to take place, and also on what terms it may be allowed.
  
  
• Nothing can be assumed by the employee. That is why it has to be critical that full disclosure be made by the employee to the employer beforehand, so the employer can exercise its prerogative in an informed manner.”
  
  
• To make disclosure to an employer after the fact effectively confronts the employer with a fait accompli, and cannot undo the breach of the duty of good faith that has already taken place.”

Is dismissal always appropriate?

To quote the Court again: “It would in my view be difficult for an employer to re employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.”

In this case the employee’s consistent denials of wrongdoing left the university, said the Court, with no alternative but to terminate her employment. But clearly dismissal will not automatically be appropriate in all cases, particularly where it is possible to re-establish trust in a case of genuine remorse. Every case will be different and specific legal advice is essential.

Consistency is critical

Employers need to be able to justify any inconsistency in approach to similar misconduct by other employees. In this case the employee’s “consistency challenge” was groundless and rejected, but it will always be a factor in assessing whether or not dismissal is appropriate.

A final note for employees

If you need or want to earn some extra cash on the side, tell your employer and get prior consent (in writing). Or risk dismissal.

And a final note for employers

Follow the principles set out above and think of putting something into your employment contracts to cover all possible “conflict of interest” situations including moonlighting. With the complexity of our labour laws and the downsides of getting it wrong, specific legal advice is essential.

“Copyright” or “Copywrite”?

Commonly confused, and sometimes incorrectly switched out by spell-checkers, these two terms are pronounced identically but have completely different meanings. “Copyright” is one of our intellectual property legal protections for creators of artistic and creative works. In South Africa it is automatic and doesn’t require registration; but adding a copyright notice with a “©” symbol and the year of creation to your work tells would-be plagiarists that you are serious about protecting your rights.

“Copywrite” on the other hand is what a “copywriter” does – literally, “writes copy”, usually for some form of advertising or other marketing communication.