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Law for the Layman

Know your rights and legal advice

Adam Ismail is a director at the legal firm Edward Nathan Sonnenbergs Inc.

I had an altercation with a guy I work with, but it was outside of the office. Can I lose my job?

An employer may discipline an employee for misconduct which takes place outside the workplace if, for example, the misconduct has an impact on the employer in some or other manner. So, for example, if your altercation with your work colleague, albeit outside the workplace, negatively impacts on your employer in a manner that entitles the employer to act against you and/or your colleague, you may face disciplinary action. If not, the employer’s disciplinary arm cannot stretch beyond the workplace.

How can I calculate the legal fees when buying property?

The legal fees when transferring a property are determined by a tariff set by the Law Society and are not a percentage of the total property cost. It’s calculated according to a sliding scale based on the property purchase price. Often in large developments with numerous transfers, the developer may negotiate a discount with the conveyancing lawyer of 40 to 60 percent on the tariff fees. If you are buying into a development or sectional title, ensure that the discount is passed onto you. However, you’re unlikely to get a discount on the transfer of a single property.

Is there any legal weight behind an email petition?

They’re problematic as they rarely provide a mechanism for the petition to be returned to the person organising it, so that it can be submitted to the right authority. Furthermore, there is the possibility of various copies of the same petition being circulated which can result in names being duplicated and the petition being viewed as fraudulent. For petitions to have legal weight, the signatures must be validated, beyond providing a mere name and address. As this is seldom provided for, the authority cannot verify the identity of the person purporting to have signed. That’s why it’s difficult to attach legal weight.

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What are my employer's obligations during retrenchment?
- I have just been retrenched. What are the legal obligations of my employer?
  
  The Basic Conditions of Employment Act 75 of 1997 regulates the obligations of an employer when retrenching a worker. An employee is entitled to notice of termination. In some circumstances, the employer may, instead of giving the employee notice, pay the employee the remuneration he or she would have received if they had worked during the notice period. On termination an employer must pay an employee for any paid leave that an employee is entitled to but has not yet taken. If an employee is dismissed for economic, technological, structural or similar needs of the employer, the employee is entitled to at least one week’s remuneration for each year of continuous service with that employer. With regards to a pension fund it depends on the rules of your specific fund. If you are a member of a provident fund, you may be entitled to have the full amount paid directly to you. If you are a member of a pension fund, there are a number of options available. Chat to your HR department.
How long does a warning remain on your work record?
- I’ve got an official warning for being late for work a few times. How long will it stay on my record?
  
  Legislation does not regulate the period of time for which a warning may apply. Ordinarily, this is regulated in the employer’s disciplinary code. Check in the disciplinary code where you work about what is provided for the period of validity. If there is no disciplinary code or procedure, or if the issue is not regulated, the warning will be valid for a reasonable period of time that, in my view, should not be more than 12 months.
When does my live-in girlfriend become my common-law wife?
- When does my live-in girlfriend become my common-law wife?
  
  Living with your girlfriend may constitute cohabitation if it is a stable relationship of a sexual nature. While there is no stipulated period of time that the parties should live together, a sense of responsibility for each other has been emphasised in order to prove the relationship exists. Cohabitation does not have the same consequences as marriage – currently there is no reciprocal duty of support and partners do not automatically inherit from each other. But it has legal consequences as the Insolvency Act and the Domestic Violence Act define “spouse” to include a partner in a cohabitive relationship.
May the police arrest me?
- I’ve received many emails about being able to refuse a police arrest on the basis of traffic fines at roadblocks. What’s the truth concerning the rights of the police and their capability to arrest me?
  
  When you receive a traffic fine, you will notice that it is a combined notice of a fine and a summons to appear in court, so if you don’t pay the fine you have to appear in court on the day specified in the notice. Therefore if you don’t pay the fine and don’t appear in court, you are guilty of contempt of court, and a warrant for your arrest may have been subsequently issued. When you are stopped at a roadblock you may be arrested in terms of this warrant, but only if the person affecting the arrest hands you a copy of the warrant. Out of convenience the police often just phone in your name to see if there is an outstanding warrant, but in terms of the Criminal Procedure Act of 1977, you can demand to see a copy of the warrant before they may legally arrest you.
How do I get back the money I loaned my friend?
- My best friend borrowed R10 000 from me. We did not draw up a contract but we did agree verbally that he would repay it. Now he refuses to. Can I get the money back?
  
  Yes. Our law recognises written and oral contracts. In terms of our law, only certain contracts need to be reduced to writing, for example, sale of land contracts. Reducing a contract to writing assists in proving the terms of an agreement and the intention of the parties. You may take your friend to court, where you would have to prove the terms of the loan – when the money was due and payable by him – and that the money was in fact paid to him, for example, by way of electronic funds transfer or witnesses who can prove that there was in fact an agreement to loan the money. There would be no point in suing your friend if he has no money or assets. However, if you do decide to sue and you obtain judgement against him and he still doesn’t pay, an attachment order can be obtained in terms of which the sheriff will sell his assets in order for you to get your money.
Am I entitled to damages after being jilted?
- My fiancée broke off our engagement and ran off with another man. Am I entitled to get the ring and other gifts back and can I claim damages?
  
  Yes, an engagement is a mutual undertaking by two persons to marry each other at some future date. However, if one party refuses to marry the other on the agreed date and the other party refuses to accept the state of affairs, the former commits a breach of promise, which constitutes a breach of contract. Since your girlfriend broke off the engagement, you are entitled to all the gifts made with a view to marriage, as well as the engagement ring and other gifts presented to show the seriousness of the promise. You are also entitled to keep all gifts given to you since she was the one who broke it off. You may claim damages from your ex-fiancée, but you would have to prove monetary loss (expenses incurred because of the intended marriage no longer taking place). You may also have a claim if you can prove that your honour, dignity and reputation has been infringed.
Do I have to move if my job moves?
- My department is relocating but I don’t want to move cities. What does the law say?
  
  In terms of the Labour Relations Act No. 89 of 1998 (“LRA”), your employer may dismiss you for operational requirements should you refuse to move cities. The LRA sets out a procedure that your employer has to follow should he contemplate dismissing you for not relocating. This procedure includes a consultation process in order to reach consensus on a number of issues, including appropriate measures to avoid dismissal. Your employer must issue a written notice to you inviting you to consult and disclose in writing all relevant information, including the alternatives that your employer considered before proposing the dismissal and the reasons for rejecting them, for example, moving you to another department.
How do I avoid marrying a gold-digger?
- I am getting married and I don’t want to be stuck with a gold-digger who will divorce me and take everything. How can I avoid this?
  
  You have three options. Under South African law, you can choose to get married in community of property, which means that if you and your wife get divorced, you will have to split everything you own 50/50 between you and her. Otherwise, if you’re worried that she’s after your money, you can marry out of community of property, with an antenuptial contract (“ANC”). If you don’t have an ANC then by default your marriage is in community of property. If you choose to marry out of community of property, with an ANC, then you have two options – including or excluding the accrual system. An ANC including accrual sharing means that you and your wife independently keep the estates that you had before the marriage, and only split the estate that you build up as a couple during the marriage. An ANC excluding accrual sharing means that you and your wife’s assets remain completely separate, and whatever you owned before, and what you acquire during the marriage stays your own. So think carefully which way you want to go before walking down the aisle.

*Men's Health does not give out contact information for experts featured in our magazine or on our web site, and queries addressed to these individuals cannot be forwarded on your behalf. If you require professional health and lifestyle advice, we strongly recommend that you contact your local service providers.

District 9 and Invictus got stuffed at the Oscars. What other great films were robbed of the Best Picture Oscar over the years?
	Citizen Kane (lost to How Green Was My Valley in 1941)
	Dr Strangelove (lost to My Fair Lady in 1964)
	2001: A Space Odyssey (wasn't even nominated, and lost to Oliver! in 1968)
	Star Wars (lost to Annie Hall in 1977)
	Apocalypse Now (lost to Kramer vs Kramer in 1979)
	Raging Bull (lost to Ordinary People in 1980)
	Raiders of the Lost Ark (lost to Chariots of Fire in 1981)
	ET (lost to Ghandi in 1982)
	Saving Private Ryan (lost to Shakespeare In Love in 1998)
	The Gangs of New York (lost to Chicago in 2002)

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