Tips when faced with employment issues

Some people live in constant fear of being fired. Who is going to pay for the bond, the car, the children’s school fees, etc.? What if my boss has a bad day and decides to fire me at the drop of a hat? If it can happen in The Devil Wears Prada, it can probably happen to me, too…?

The good news: South African Labour Law favours reasonableness and (more often than not) the employee. A fair dismissal means two things. Not only must a dismissal be substantively fair (in other words for a good reason), but it must also be procedurally fair. This is where most employers falter: the dismissal was for a good reason but was done in an incorrect/ unfair manner! This could lead to the CCMA or Labour

Court ordering your reinstatement, compensation paid to you or even both!

Procedurally speaking, the process is normally as follows: verbal warning, written warning, final written warning and then … dismissal. Only in extreme cases (assault or gross negligence, for example) may an employer skip a few steps and opt for a dismissal. Between each of the aforementioned steps, however, another important protector-of-the-employee lies: the disciplinary hearing. Remember that the outcome of a disciplinary hearing can be a verbal warning, written warning, final written warning or dismissal in serious cases.

5 Tips when faced with that ‘Notice to attend a Disciplinary Hearing’ document:

1. Request the formal written complaint that led to the disciplinary enquiry in the first place. This will help you prepare a proper defence. The formal written complaint will go into a lot more detail than the few sentences you’ll find in the ‘Notice to attend a Disciplinary Hearing’ document, which typically merely lists the charge(s) against you in a sentence or two. Note that you have a right to the formal written complaint, however, employers often fail to attach it to the ‘Notice to attend a Disciplinary Hearing’ document.

2. Ask whether you may bring in a legal representative. Most employers will, however, decline as they also have the freedom to do so. Your next best bet is a union representative or a colleague. You do have the right to be represented by a fellow worker. At the very least, use any colleague to sit in and take notes and write EVERYTHING down. This will serve you well should you take the matter to the CCMA at a later stage.

3. Make sure that the Chairperson is someone outside the organisation and does not work for/ follow demands of the complainant (person whose formal complaint led to the disciplinary enquiry against you).

4. Use the formal written complaint to prepare your questions to the complainant and his/her witnesses in advance. The complainant and his/ her witnesses should state their case first, providing you the opportunity to cross examine the complainant’s witnesses.

5. Make a special note of the time it takes for the Chairperson to come to a conclusion. Did the Chairperson take enough time (preferably a few days) to consider all the evidence or did the Chairperson perhaps have a preconceived outcome in mind? Remember that the Chairperson must use the evidence presented by the two parties (you and the complainant) to determine your guilt on a balance of probabilities. Your previous work record/ written warnings/ compliments/ mitigating factors are excluded from this decision and only come into play after the Chairperson is convinced of your guilt and before the Chairperson decides on a proper sanction (written warning, final written warning, dismissal).

One last thing, remember your rights when it comes to a disciplinary hearing. Note that these rights must be provided to you in writing prior to the hearing. Make a large note of it if this is not the case!

You have the right to:

a. Be present at the hearing. If you fail to attend the hearing, the matter needs to be postponed to a new date. If you are then, however, absent once more, the enquiry may proceed in your absence;

b. Have enough time to prepare your defense against the charges;

c. Be represented by a colleague of your choice or by a shop steward/ union official;

d. Ask as many questions as you wish, cross examine the witnesses called by the complainant and also to have witnesses of your own present and ready to be asked questions;

e. An interpreter if necessary;

f. Appeal the decision of the Chairperson internally before proceeding to the CCMA.


* Attention all Legal Hero Policyholders: please contact us the moment your receive a notice to attend a disciplinary hearing. Dial 0861 22 99 22 and select voice prompt 4. 

Drinking & Driving 101 – what happens next?

Let’s say I get behind the wheel after a few too many drinks. Next I get pulled over by a Police Officer who suspects that I am over the limit… what happens next?

THE PROCESS:

1. Pulled over and the Police Officer suspects that I am over the limit.


2. Breathalyzer proves that I am over the limit (0.24mg per 1000ml).

3. Taken by SAPS member for blood tests at an alcohol testing center.


4. My car may be taken to the Police Station and keys held until my release.


5. Registered medical practitioner takes a blood sample and relevant forms are completed, which includes details of my physical appearance and ability to perform certain tasks, such as the Romberg Test to check my stability or lack thereof. Necessary force may be used. Blood test needs to be performed within 2 hours of my arrest or being pulled over by members of SAPS. I therefore need to make a note of the time period.


6. I should make my phone call to Legal Hero (or a loved one who will alert Legal Hero). Important information: Time of arrest, Police Station where I am being held, Charge, my policy number or ID number, next of kin details.


7. I am placed in a holding cell at the Police Station (usually 4 hours to sober up), but this may vary according to my level of intoxication.


8. During this time Legal Hero contacts the Police Station to firstly confirm my arrest and then to try arrange Police Bail.


9. Once all paperwork has been processed and I am released on Police Bail (with or without having to pay bail) and once sober, I will be informed to return to Court for a quick appearance, which will be my first appearance. My case will then be postponed in order for the State to proceed with its investigation which will included: obtaining witness statements, formal procedures attended to by the arresting Officer (this is called the chain of events), obtaining blood results from the appointed lab. This process of investigation may take several months to complete.


10. Return to court for further appearances and most probably further postponements up until the State has concluded its investigation and is ready to proceed with trial.


11. Final appearance in Court for the hearing/s of my matter.


12. Possible outcome: Criminal record, jail time, large fines and/ or license suspended.


13. There is a small chance that a diversion may be granted (community service/ etc. with no Criminal record).





THE LEGAL LIMIT ACCORDING TO THE ROAD TRAFFIC ACT 93 OF 1996

Breathalyzer: 0.24mg per 1000ml

Blood test: 0.05g per 100ml

Whilst driving a vehicle OR occupying the driver’s seat of which the engine is running… on a public road. 

DO NOT DRINK AND DRIVE. EVEN THE SMALLEST AMOUNT OF ALCOHOL AFFECTS YOUR DRIVING ABILITY. STAY SAFE THIS FESTIVE SEASON.

#Arrest101

An arrest often happens when you least expect it. Sometimes, in less serious cases, you are granted Police Bail. This is when you may leave the Police Station’s holding cell, go home and then return for the Court appearance.

However, sometimes what is required is a formal bail application in Court. This is when you need to remain in the holding cell and wait for your Court appearance (must happen within 48 Court hours).

Just this morning one of our Policyholders appeared in Court following his arrest on Sunday (yesterday). The Legal Hero Policyholder luckily remembered to contact our 24/7 bail line. This morning his Attorney - paid for by Legal Hero at no extra charge/ no excess fee to him - attended to his formal bail hearing in Court and managed to have all charges against our Policyholder withdrawn by virtue of mediation entered into with the State.

Depending on certain factors such as the type of charge involved (the seriousness thereof) and whether the accused has committed any previous convictions, the State is inclined to extend a “helping hand” to an accused who has strayed by referring criminal charges for mediation. This is in an attempt to resolve the matter in an amicable manner between the accused and complainant. However, should the accused try to misuse or make a mockery of the State’s kindness, mediation will not be offered and the case will run its normal course.

Have a great day!

Legal Hero 

www.legalhero.co.za

Equal protection of the law?

The only problem is that the law is very expensive. People earning less than R5500 per month may have access to free Legal Aid. The rest may need to fork out hundreds of thousands for legal help. Unless you have legal cost insurance = payment of an affordable and fixed monthly premium that pays out and covers you in your future moment of need. 

Section 9 of the Constitution of the Republic of South Africa, 1996 further reads, 

‘Everyone is equal before the law and has the right to equal protection and benefit of the law.’ 

The truth is that everyone is not always equal before the law if you cannot make use of the law (when you do not know how to enforce your rights, do not qualify for free legal aid and cannot afford the assistance of a private legal professional). 

Legal cost insurance is not a new concept and started out in the United Kingdom and Canada. Often referred to as ‘pre-paid legal services,’ protection is secured for future legal and litigation costs as per the terms and conditions of the relevant policy. Different to life insurance, legal cost insurance is a short-term insurance product. It is vigorously regulated by many acts with a few more developments on the horizon. Treating customers fairly is paramount. 

Legal cost insurance also has its own Ombud. The Office of the Ombudsman for Short-Term Insurance acts as a mediator/ arbitrator to assist consumers with complaints concerning service or a litigation rejection received in contrast with the terms and conditions of the policy. The service is free, however, only available once the complaint has been lodged with the legal cost insurance company first. If the complaint remains unresolved, same may be sent to the Ombud: P.O. BOX 32334, Braamfontein, 2017. Tel: (0860) 726 890 / (011) 726 8900 | Fax: (011) 726 5501. Email: info@osti.co.za.

Knowledge is power. 

Yours truly, Legal Hero 

www.legalhero.co.za

Muslim Marriage

“The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths.” - Daniels v Campbell and Others 2004 (5) SA 331 (CC) para 54.

Prior to our progressive and tolerant constitution, marriage was an option available only between a man and a woman in terms of the Marriage Act of 1961. Today same-sex couples may marry in terms of the Civil Union Act of 2006 and the Recognition of Customary Marriages Act of 1998 allows for African customary marriages.

South Africa has yet to enact legislation (law) that specifically caters for Muslim marriage.

Luckily there have been a few positive strides: 

• There are instances where our law does in fact recognize a Muslim marriage to a certain degree in order to offer protection. For example, only a ‘spouse’ can apply for maintenance from the deceased estate of their loved one after his/ her passing. To be considered a surviving ‘spouse’ in terms the Maintenance of Surviving Spouses Act, your marriage must, however, be legally recognized and therefore valid in South Africa. In the Constitutional Court case quoted above, the surviving wife (married in terms of Muslim law) was acknowledged as a ‘spouse' and in the court case of Hassan v Jacobs the surviving spouse of a polygamous Muslim marriage was also accepted as a surviving ‘spouse.' 

• The Muslim Marriages Bill is a draft law that was compiled back in 2003. This Bill has, however, been subject to much criticism. For example, it states that Muslim Marriages will automatically be OUT of community of property unless parties enter into an ante-nuptial agreement stating otherwise. In terms of South Africa’s other marriage laws mentioned above, a marriage will automatically be IN community of property. Being married IN community of property often offers protection to a spouse who gives up his/ her career and opportunities to stay at home and take care of the children. Should the couple divorce, parties married IN community of property will split everything fifty-fifty. 

• A few years ago Imams (Muslim clerics) were trained and appointed as authorized marriage officers, enabling a Muslim marriage to be solemnized by a registered Imam marriage officer in terms of the Marriage Act. Whilst the aforementioned is great news, many questions still remain unanswered pending the enactment of the Muslim Marriage Bill to deal specifically with many rights, responsibilities and consequences of a Muslim marriage. 

The point of having a specific act (law) such as the Marriage Act, Civil Union Act and the Recognition of Customary Marriages Act, is to offer case sensitive regulation and protection. 

Without a specific act, many questions that arise include the logistics and rights when it comes to the resolution of the marriage, for example. There are also a few other concerns regarding Islam law which have been cited as reasons why the enactment of the Bill is dragging its feet, including the man’s exclusive right to end the marriage unilaterally (talaq) and the custom that a woman may be wed by proxy.

“Everyone has the right to freedom of conscience, religion, thought, belief and opinion… This section does not prevent legislation recognizing… marriages concluded under any tradition, or a system of religious, personal or family law… Recognition… must be consistent with this section and the other provisions of the Constitution.” – Section 15(1), 15(a)(i) and 15(3)(b) of the Constitution of the Republic of South Africa, 1996

We wish you a wonderful and thought-provoking Heritage Month. South Africa's rich diversity of religious communities, cultures, languages and customs have a great deal to offer. As the preamble to our Constitution asks, may we all live ‘united in our diversity.’

www.legalhero.co.za

The Curious Case of Prince v President

Prince dreamed about becoming an Attorney. The Law Society, however, refused to register Prince as an Attorney due to his two previous convictions on the count of dagga possession. 

Prince took the Law Society to Court and based his arguments on the following: infringement of his right to freedom of religion as a Rastafarian, unfair discrimination as part of a minority group in South Africa, the right to choose his trade and occupation freely and infringement of his right to human dignity. 

The Constitutional Court (decided on 12 December 2000):

• Yes, the Constitutional Court agreed that the Drugs and Drug Trafficking Act of 1992 DOES in fact infringe Prince’s constitutional right to freedom of religion;
• This limitation is, however, justified. Constitutional rights are not absolute and can be limited in terms of section 36 of our Constitution “only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”
• The State has an important obligation to combat the use of and trade of drugs and has signed international agreements to do so. There is furthermore little information available on the use of dagga and South Africa’s Rastafarian community to justify a religious exemption.

Did you know? 

• · Cannabis/ marijuana/ dagga has been in use for over 8 millennia;
• · R300 million: the cost in Gauteng alone to arrest, prosecute and keep marijuana offenders in jail - according to research conducted by the Anti-Drug Alliance NGO; 
• · Some argue that there is very little evidence to support that Marijuana is harmful or addictive whilst others argue that all medicines and even herbs have side effects;
• · USA: about 23 States have legalized medical marijuana, and others are in the process of following suit;
• · South Africa: the Medical Innovation Bill (draft law to legalize marijuana in South Africa for medical, economical and industrial use), was introduced in Parliament in February 2014. It could take a number of years for the bill to be signed and become law. Some argue that the Bill is just a copy and paste version and does not cater for South Africa’s unique circumstances. 

Unfortunately Prince’s dream to become an Attorney did not materialize. One must note that the Medical Innovation Bill, even if it were law, would not have helped Prince. Reason: Prince used marijuana for religious/ spiritual purposes and not for medical reasons. In this case the Constitutional Court, however, once again acknowledges our right to freedom of religion and quotes a well-known passage from the case Christian v Minister of Education 2000 (10) BCLR 1051 (CC) para 36: 

Yours Faithfully, 

Legal Hero 

www.legalhero.co.za 

Know Your Socio-economic Rights!

Socio-economic Rights include the right to adequate housing, food, health services and water. In other words, these rights are basic essentials necessary to survive. 

It differs from Civil and Political rights (the right to vote, freedom of speech, equality, etc.) necessary to lead a full life.

Our Human Rights (both Civil/ Political and Socio-economic) are found in Chapter Two of our Constitution, the Bill of Rights. The wording of our Constitution qualifies certain Socio-economic Rights. 

Socio-economic rights can be qualified or unqualified 

· Qualified: 

- Only if the State (Government) has sufficient resources to fulfil the right;

- The State will make these rights available within its means/ depending on its budget/ ‘within available resources.'

· Unqualified: 

- The State has a duty to make these rights available; 

- This does not mean the State must make these rights available immediately or without delay (according to the Constitutional Court).

Human right violations: 

Speak to your hero/ attorney. Alternatively, you may contact the South African Human Rights Commission at complaints@sahrc.org.za.

Note: non-nationals can also claim Socio-economic Rights. If you have a look at the wording used in the Bill of Rights, you'll notice the word 'everyone' is used in the socio-economic sections. Also, in the Khosa case of 2004, the Constitutional Court once again highlighted that non-nationals are a vulnerable group in our society and should be protected.

Other rights, however, such as the right to vote and access to land, use the word 'citizens.'

Wishing you a wonderful Friday and weekend, 

Legal Hero

www.legalhero.co.za 

Human Dignity – fundamental value and justiciable right

When it comes to our basic human rights, those that usually jump to mind include access to water, adequate housing, health care services, basic education, etc. Perhaps it is because these rights are easy to explain.

What about the right to dignity? Section 10 of our Constitution reads that everyone has the right to have their dignity respected and protected.

Dignity is, however, often described as ‘fluffy’ in that our Constitutional Court has yet to define it. Many therefore argue that it cannot be seen as a human right on its own and rather serves as a guide/ value when interpreting the various other human rights found in our Constitution.

In the spirit of Human Rights Month, we have assembled some of our favourite judgement quotes on human dignity. 

1. In S v Dodo, concerning cruel and degrading punishment, the court raised the importance of human dignity.

2. Human dignity furthermore endorses our political rights.

3. In the case quoted below, it was acknowledged that “dignity is a difficult concept to capture in precise terms.” Nonetheless, it was ruled that the criminalisation of sodomy impairs human dignity.

 

     4. The Dawood case highlighted that human dignity is also a justiciable and enforceable right in itself. The court stressed that a human rights infringement can infringe more than one right. Cruel and degrading punishment infringes our right to bodily integrity as well as our right to human dignity, for example.

        

Wishing you a spectacular Monday! 

Yours truly,

Legal Hero. 

www.legalhero.co.za