Law Works

29/10/2018

What you put on Social Media has the potential to effect your employment potential.

Lawyer and social media expert Emma Sadleir has warned that anyone who redistributes personal s*xual videos is committing a criminal offence.

26/10/2018

EVERYTHING YOU’VE ALWAYS WANTED TO KNOW ABOUT THE SMALL CLAIMS COURT BUT HAVE BEEN TOO SCARED TO ASK

The Small Claims Court provides a prompt and inexpensive way to resolve minor disputes. It is meant for the ordinary man and woman on the street who cannot afford civil litigation. In particular, the Small Claims Court can benefit the destitute and indigent in South Africa to be able to access justice in a very informal, cost-effective, and user-friendly manner.

The Small Claims Court is governed in terms of the Small Claims Court Act 61 of 1984 (‘the Act’) which is established for a time and cost-effective mechanism for those who have a claim against another party. The Small Claims Court is for anyone who wants to institute a minor civil claim against someone else. You can also institute claims against companies and associations.

However, the claims are limited to amounts that are less than R15 000. This excludes the State, meaning a person cannot, for example, make a claim against a local municipality. Claims brought to the Small Claims Court are dealt with quickly and cheaply without claimants having to appoint an attorney, and anyone, except juristic persons, are allowed to make use of this forum.

What does the process entail?

The procedure of lodging a claim in the Small Claims Court is fairly easy and straightforward. As in the case of most litigious claims in other courts, claims should initially be instituted by way of a letter of demand, which must be sent by registered post or be hand-delivered. In the letter of demand, one should set out all the relevant facts which give rise to one’s claim, and specify the amount being claimed. The party instituting the action should give the opposing party 14 working days in order to settle the claim, which is calculated from the date of receipt of demand by the defendant.

The Act provides that upon proof submitted to the clerk of the court that the requirements regarding the letter of demand have been complied with; and if the clerk of the court is satisfied that the plaintiff is a natural person; and that the summons comply with the prescribed requirements, the clerk of the court shall set a date and time for the hearing of the action and issue the summons. The summons will then be served on the defendant personally or by the sheriff of the court.

The hearing:

The claimant and the defendant must appear in court in person and the hearing will be chaired by the commissioner. Commissioners in the Small Claims Court are usually experienced legal practitioners. Remember that all the documents on which one’s claim is based should be brought to the hearing, as there is no point in showing up empty-handed. The Small Claims Court proceedings are basic and straight-forward. No legal representatives such as attorneys or advocates are involved in the proceedings, which contributes to the cost-effective nature of this mechanism. As the proceedings begin, answer any questions that the commissioner of the court may ask.

The judgment:

After the hearing of the action, the judgment will be given by the commissioner, which becomes final and enforceable. If the commissioner grants judgment in your favour, he or she will usually ask the defendant how the debt will be settled. The commissioner can make an order for payment by instalments. If no such order is made and the defendant does not pay or settle the judgment within two weeks, one can enforce this judgment by ex*****on in the Magistrate’s Court. It must be noted that a judgment in the Small Claims Court is not appealable but may be taken on review.

12/10/2018

The Pretoria High Court struck another blow on behalf of distressed debtors last week. A full bench of three judges ruled that magistrate’s courts should be the first port of call for financial institutions seeking judgment against their clients, where matters fall within the lower courts&rsqu...

04/10/2018

KNOW YOUR RIGHTS - CRIMEN INJURIA
What is Crimen Injuria?

Crimen Injuria is a common law offence that has been applied to a diverse array of conduct. Unique to South African criminal law, and focuses on the protection of dignity and privacy, rather than the protection of reputation, which is encompassed by the law of defamation.

It’s defined in South Africa as “unlawfully and intentionally impairing the dignity or privacy of another person”. The early recorded cases tended to involve incidents of private or public indecent exposure and invasions of privacy.

So if your rights with respect to dignity or privacy are infringed upon, whether in the workplace, public arena or elsewhere you could be in a position to lay a criminal charge of Crimen Injuria.

Source: WWW.LAW-WORKS.CO.ZA [email protected]

Law-Works© is a wholly owned subsidiary of Segals Inc. Pty Ltd, a boutique Legal Consultancy established in 2002, specialising in the representation of employees.

24/09/2018

CANNABIS IS LEGAL!
THE FACTS THUS FAR

One of South Africa’s foremost trending legal matters of late has been the legalisation of cannabis.
While the prospect of it being legalised was taken to court and an official answer awaited, much of the country thought that it was in fact already legal, and many individuals got themselves in trouble as a result.

Local news outlets announced that the Constitutional Court ruled that personal use of ma*****na is no longer a criminal offence.

The ruling followed a Western Cape High Court judgement, which stated that the possession, cultivation and use of cannabis for private use in private spaces is legally allowed. However, it was not clarified or specified how much cannabis one person is legally allowed to have in possession or use.

Much of South Africa was elated, while many were disappointed. Not everyone shares the same optimism of the drug being consumed, never mind made to be legal for use.

The State appealed the judgement in the Constitutional Court and argued that the decision was not in line with the values of South Africans. In 2017 certain laws under the Drug Act and Medicine Act were debated

However, this week the Constitutional Court found that sections of the Drug Act and Medicine Act were unconstitutional and invalid, to the extent that it prohibits the use and possession of cannabis by an adult in private for the adult’s personal consumption in private. The Constitutional Court held these statutory provisions constitutionally invalid, because they infringe the right to privacy entrenched in Section 14 of the Constitution.

What’s more, the court held that the right to privacy extends beyond the boundaries of the home. It suspended its order of invalidity for a period of twenty-four months to give parliament the opportunity to correct the constitutional defects in the two acts, and so, it can either be celebrated, or mourned, depending on your point of view, that it would, therefore, not be a criminal offence to use or be in possession of cannabis for personal use in private spaces.

Be warned, though, that the amount legally allowed by any one person was not specified and is still to be determined. It also states that any cultivation must be for personal use and if an officer suspects that possession or cultivation is for dealing purposes, the individual will be arrested and the court will decide if it was for personal use or distribution.



Please Note: The information on this post is not intended to be nor should it be relied on as a substitute for legal advice.

21/09/2018

The SABC has welcomed the CCMA's decision against Hlaudi Motsoeneng's bid for reinstatement as group executive for corporate affairs.

13/09/2018

Register your place at our upcoming
FREE LABOUR LAW
SEMINAR
education -works.co.za

13/09/2018

K N O W Y O U R R I G H T S
A NUMBER OF CLIENTS HAVE BEEN ASKING WHERE EXACTLY IN THE CONSTITUTION OF SOUTH AFRICA, OUR RIGHT TO FAIR LABOUR PRACTICES ARE CONTAINED?
Also what are these rights?

BELOW IS THE ANSWER
K N O W Y O U R R I G H T S

Chapter 2 of the Constitution contains several provisions of relevance to employment and labour law:

the right to equality
protection of dignity
protection against servitude, forced labour and discrimination
the right to pursue a livelihood and
protection for children against exploitative labour practices and work that is hazardous to their well-being.
It is important to interpret all labour legislation in light of the Constitution.

Section 23 of the Constitution deals specifically with labour relations, providing that everyone has the right to fair labour practices,[1] and specifically the right

to form and join a trade union;
to participate in the activities and programmes of a trade union; and
to strike
Every employer, meanwhile, has the right

to form and join an employers’ organisation; and to participate in the activities and programmes of an employers’ organisation.
Every trade union and every employers’ organisation has the right

to determine its own administration, programmes and activities
to organise and to form and join a federation
Finally, every trade union, employers’ organisation and employer has the right to engage in collective bargaining.

Section 23(1) is an unusual provision—only South Africa and Malawi expressly protect the right to fair labour practices — as it is so broad and overarching. An exact definition of fair labour practices is impossible, since this is a dynamic field of the law, rooted in socioeconomic rights. Section 23(1) refers to "everyone," encompassing far more than merely employees and workers; it also includes would-be workers, employers and juristic persons.

Section 23 is not entirely universal, however, as soldiers are excluded from its ambit insofar as they may not strike at a time of war.

The Labour Relations Act was promulgated as the "national legislation" referred to in subsections 23(5) and 23(6), which provide respectively that "national legislation may be enacted to regulate collective bargaining," and that "national legislation may recognise union security arrangements contained in collective agreements." Both subsections stipulate that, to the extent that such legislation may limit one of the rights in section 23, the limitation must comply with section 36(1), the limitations clause of the Constitution.

03/09/2018

Depression and your right to Medical Leave

In some cases, depression can and should be declared a disability.

31/08/2018

Massmart decided to pursue a former employee who poached his former colleagues. It paid off for the company.

30/08/2018

IS HAVING A CRIMINAL RECORD IMPACTING YOUR CHANCES OF EMPLOYMENT?

Did you know that new legislation allowing criminal records for “minor offences” can be set aside?

Securing meaningful employment or employment in general is no easy feat as it is. Now imagine having a minor criminal offence against your name that acts as a barrier every time you apply for a job. Difficult becomes impossible. Most employers do background checks on possible new employees, and while we like to think that understanding will be given to crimes committed decades ago, it is seldom the case.
So in light of this struggle concessions have been made in which minor offences can be expunged. This is good news for those who didn’t think an unsavoury act committed in their teens might haunt them for such a long time or affect their employment chances.
An application to have an offence expunged must be made to the Department of Justice and when approved, the conviction will be completely removed from the database of the Criminal Record Centre of the South African Police Service. That means that it will be like the offence never happened.
For your information, records can only be considered for expungement if the following applies:
The criminal record is a decade old or older.
It was a minor offence, like petty theft, shoplifting or crimes for which the punishment is no longer constitutional.
An individual has discovered that a criminal record exists against his/her name after having been told that paying a fine would not result in such a record.
Expungement is not applicable for serious crimes like murder, r**e and other s*xual offences, or violent crimes.
CONTACT IS IF YOU REQUIRE ASSISTANCE. KNOW YOUR RIGHTS!

27/08/2018

http://www.bizcommunity.com/Article/196/607/181044.html

Is the dismissal of an employee, who compares a fellow employee to a monkey, fair...