‘GOLDEN HANDCUFFS’: MAKE THEM STRONGER!

Employers: when your staff could damage your business by resigning and taking your trade secrets to a competitor, protect yourself by including a restraint of trade clause in their employment contracts.

PROPERTY OWNERS: MANAGE YOUR RISK OF PERSONAL INJURY CLAIMS

Property ownership has many advantages, but - as a recent High Court case serves to remind us - you must also manage the risks.

DANGEROUS ROADS, DANGEROUS LAWS

What happens if you are seriously injured or killed in one of South Africa’s many traffic accidents? How do you and/or your dependents continue to survive financially?

Under the old Road Accident Fund Act, if the other party was at fault, you could claim against the Fund for your full (i.e. actual) losses. The controversial amendment to the Act – in force since 2008 and recently declared by the High Court to be constitutional and valid – has changed all that.

“BABY BOOMERS” 65 SOON: AVOID AGE DISCRIMINATION!

With the first wave of Baby Boomers turning 65 next year, employers and their employees need to understand the rules relating to compulsory retirement age. In a nutshell, forcing someone to retire at 65 could – unless our labour laws are strictly complied with - amount to automatically unfair discrimination on the grounds of age.

ARRESTING THE FUGITIVE DEBTOR: RISK AND REWARD

You learn that your debtor is about to skip the country, leaving you to pursue your claim in a foreign court - an expensive and inconvenient alternative at the best of times. What can you do?

BUYERS BEWARE! CHECK THE SELLER’S MARITAL STATUS BEFORE BUYING!

Where a couple is married in community of property, certain assets (including property interests, shares, investments etc) cannot be disposed of by one spouse without the consent of the other.

INVENTORS: S.A. PATENTS LAUNCHED INTO CYBERSPACE!

“There's a way to do it better - find it!” (Thomas Edison)
Inventors (budding and veteran) take note – CIPRO’s new electronic patent database has just been launched. Go to the “Public Patent Search” site at http://patentsearch.cipro.gov.za/home/default.aspx to view all South African patents for the period 1984 to 2005 (other years will be added to the site in phases). You can access the full details and status of each patent via a comprehensive search facility.

DEBT RECOVERY INTEREST AND COSTS CAPPED

Credit providers and consumers need to be aware of a recent High Court ruling that applies to any debt governed by the National Credit Act (the relevant sections of which came into effect on 1 June 2007).

PROPERTY TAX GAP WIDENS – EXTENDED TO TRUSTS

The draft tax legislation we mentioned last month (tax relief for the transfer of residential property out of companies and CCs) has been extended to include properties held in trusts.

WATCH THIS SPACE FOR A PROPERTY TAX GAP

If you hold your home in a company or close corporation, stand by for a possible opportunity to save a lot of tax. If new tax legislation is passed as is (it’s still in draft form), you could benefit significantly by transferring the property into your own name without paying transfer duty and STC (CGT will be rolled over) – potentially a very big saving!

THE SOUND OF SILENCE, AND THE “DUTY TO SPEAK” PERIL

Can you be forced into a contract by someone making you an offer and telling you that you will taken to have accepted it if you remain silent? Generally not – our law requires active acceptance before a binding agreement is formed. But there is an important exception to this rule, and it was neatly summed up in a recent High Court case as follows: -

PYRAMID SCHEMES – THE REPAYMENT RISK (AND INNOCENCE IS IRRELEVANT!)

A pyramid scheme must, by definition, eventually collapse; leaving (statistically) up to 88% of investors queuing for whatever the liquidator is able to recover for them from the perpetrators.

TAX RETURNS DUE SOON!

SARS has gazetted the following deadlines for submission of income tax returns for the 2009 tax year: -

CLOSE CORPORATIONS: TO CONVERT OR NOT? THAT IS THE QUESTION

Now that the new Companies Act has been signed into law, should you rush to convert your company to a close corporation (or vice versa)?

Note firstly that, until the new Act actually comes into force next year (10 April 2010 at the earliest), you can continue to register new CCs, and to convert between CCs and companies. Moreover, existing CCs will continue as such even after the new Act kicks in.

TERMINAL DECISIONS: LIVING WILLS

If you don’t want to be kept artificially alive, possibly in pain and distress, when your medical condition is hopeless and you are no longer able to make your own wishes known, consider executing what is called a “Living Will”. 

THE FOREIGN CURRENCY CONVERSION BLUES

When contracting in a foreign currency to be paid locally, specify how the conversion to Rand is to be effected. 

WHISTLE(BLOWING) WHILE YOU WORK

The Protected Disclosures Act (more popularly referred to as the “Whistleblower’s Act”) provides procedures for employees to disclose unlawful or irregular conduct by their employers or fellow employees (in both the public and private sectors), without fear of reprisal.

FIDENTIA, THE BROKER, AND THE CLIENTS’ CLAIMS

Financial services providers risk liability for any poor investment advice they give, and need to comply strictly with their statutory Code of Conduct.  A recent determination by the FAIS Ombud illustrates in particular the danger of not keeping the required “record of advice” given to clients.

UNLAWFUL OCCUPIERS: WHEN CAN’T YOU EVICT THEM?

1. Establish the basis of their occupation – take advice upfront to be sure that you can evict them in need, and
2. Factor into your cash flow projection a safety margin for holding costs, sufficient to cover delays whilst you follow eviction procedures.

WHAT TO DO IF YOU MISSED THE TURNOVER TAX REGISTRATION DEADLINE

If your small business has a turnover of no more than R1 million, it may qualify to change to the greatly simplified “all-in-one” Turnover Tax system, but take advice first – you may be better off with the current system!

Navigating Equity Markets

Cannon Investment Managers presented to clients at the Victoria Country Club on 15 July, jointly hosted by ourselves, Quantum Financial Planning and John Hardie and Associates.   What Dr Saville had to say stimulated many of us to consider reassessing our own investment portfolios. 

REMINDER

It's not too late to register for "To Buy or Not to Buy".  See the invite below.

TO BUY OR NOT TO BUY

Austen Smith and Quantum Financial Planning have secured the Chief Investment Officer of Cannon Asset Managers - Dr. Adrian Saville to present on the following topic: 'NAVIGATING EQUITY MARKETS' from which, in light of the current climate, we feel confident clients will come away richer for the hour spent with us.

• Date: 15 July 2009 at 07h30 for 08h00 (one hour presentation)
• Venue: The Victoria Country Club, Pietermaritzburg
• Muffins, tea and coffee will be served at 07h30, with the talk starting at 08h00am sharp.

MUTTON DRESSED UP AS LAMB!

The Code of Advertising Practice prohibits “misleading claims” in advertising, whether by “any statement or visual presentation”, and whether “directly or by omission, ambiguity, or exaggerated claim”. 

THE “ANTHRAX POWDER” HOAX, AND THE POLICE STRIKE BACK

Our Stand at the Tala Bridal Fair

We will be at the Witness Bridal Expo at the Royal Showgrounds on Thursday and Friday, so come and visit us there! 

Bridal Expos

Visit our stands at the Tala Bridal Fair on 13 and 14 June, and the Witness Bridal Expo from 18 to 19 June at the Royal Showgrounds!

TO BUY OR NOT TO BUY... that is the question?

FIREARMS: LICENCING, SURRENDERING, AND COMPENSATION

If you are a firearm owner born between 1 October and 31 December who didn't renew your licence by the deadline of 31 March 2009, you have until 30 June 2009 to (as advised by SAPS) "opt for other options such as selling of their firearms to another person/ legal entity, applying to the South African Police Service to deactivate the firearm or voluntarily handing the firearm over to the South African Police Service for destruction".

The Royal Show's Women in Business Stand and the Bridal Expos

We invite you to visit us at the Royal Show on the Women in Business Stand next week.  We will also be at the Tala Bridal Expo on 13 and 14 June and the Witness Bridal Expo on 18 and 19 June this year.  Click on the link below to see our poster. 

RETRENCHMENT: NAVIGATING THE MINEFIELD! (LawDot)

“Increasing levels of business distress and failure = more retrenchments”. 

That unfortunately is an equation that will be with us for some time.

COLLECTING FROM THE DEAD

 The world-wide credit crunch has, according to media reports from the U.S., had one particularly distasteful side effect, namely debt collection firms coaxing or cajoling people, often shortly after the death of a loved one, into paying their dead relatives' credit card bills or other debts.

Ou Suipie se Hoek

SMG...........no, don't worry, the Suipster is not going to talk about BMW's, or, come to that, submachine guns either, you can all rely on the fact that he is no expert on either (in fact he does not think he is an expert on much really, especially not wine), this is actually only about Shiraz, Mourvedre, Grenache.

YOUR WILL – MAKE SURE IT’S TAX EFFICIENT!

When drawing your will, it is vital to have it checked for tax efficiency.  If you don’t, you could lumber your estate (and thus your heirs) with having to pay far more estate duty and other taxes than necessary.

2010 WORLD CUP – DON’T MARKET OR ADVERTISE WITHOUT READING THIS!

If you are about to start any advertising or marketing around the substantial opportunities that next year’s World Cup has laid at our door, check whether or not your campaign will conflict in any way with FIFA’s “exclusive rights” to be associated with the event, and/or infringe its “Official Marks” (logo, emblem, mascot, poster etc).

YOUR WILL - MAKE SURE IT'S VALID!

The last thing you want your grieving loved ones to have to go through after you die is the delay and expense of a legal fight over your estate.

VIEW AND PAY TRAFFIC FINES ONLINE

Check whether you have any outstanding traffic fines, view them (often with camera pictures) and pay them via credit card on the Payfine site at www.payfine.co.za (currently only Johannesburg, the Free State, Cape Town, Stellenbosch and Paarl are covered). 

PENSION DEDUCTIONS …… CHECK YOUR SYSTEMS

Employers need to ensure that they have systems in place to make certain that pension fund contributions deducted from employees are correctly paid over to the fund administrators.

Promises, promises...

Don't promise to marry someone lightly - such a promise gives rise to an enforceable engagement contract, and if you breach it without sufficient justification, you could be in for substantial damages claims - not just for any monetary loss, but also for consequences such as wounded feelings, embarrassment and humiliation.

COMPUTER PROGRAMS – WHO OWNS THE COPYRIGHT?

“Only one thing is impossible for God: To find any sense in any copyright law on the planet.”  (Mark Twain)

Original computer source code can be worth a fortune, but who owns it – the employee who wrote it, or the writer’s employer?

WARNING! SEVERE SANCTIONS FOR RACIAL DISCRIMINATION IN THE WORKPLACE

The consequences for any employer guilty of racially discriminatory practices are severe. In a recent Labour Court case, an employer was held to have unfairly determined an employee's pay on the basis of race, and to have unfairly dismissed her for exercising her right to refer the practice to a bargaining council for conciliation.

RISKY SPORTS: ARE YOU CONSENTING TO INJURY?

Before you next run onto a rugby field, leap onto your motorbike for a race, or decide to watch cricket from a stand within range of a "Sizzling Six" from Albie Morkel, bear in mind that our law will not allow a claim for loss or injury by anyone who "willingly consents to an activity involving risk of harm" .

GOVERNMENT APPLICATIONS - DEMAND A DECISION, AND DON’T TAKE IT LYING DOWN

 We are fortunate in having many dedicated and capable government officials, but if you end up dealing with one of the exceptions – don’t take it lying down.  If for example you make an application to any government department or agency and then can’t get a decision out of it, you may well be entitled to a court order forcing the department to (a) make a decision and (b) communicate it to you. 

DOUBLE BUNK DANGER!

A tragic case recently before the High Court illustrates the very real dangers of allowing children to sleep in the top bunk of double bunk beds without a safety rail adequate enough to prevent them from falling out.

BRUCE GEMMELL TO JOIN AGENCY CONVEYANCING IN 2009

Austen Smith are pleased to announce that Bruce Gemmell (B.Proc) of Hathorn Cameron will be joining them in 2009.

National Wills Week

2008-09-01 08:00:00

Spring is officially here and the first bit of spring cleaning came about this week with National Wills Week. 

Easter Hamper Winner!

2008-04-07 08:00:00

David Gates of Rhodiadale Farm won the Easter Hamper in last month's competition.

The Witness : Austen Smith in the news

2008-01-21 08:00:00

Staff crisis at the Master's Office by Ingrid Oellermann on 18 January 2008; and ... Too many cases on the Court roll - Take a break by Derek Alberts on 21 January 2008!

UIF and Body Corporate Levy Updates

2008-01-12 08:00:00

News from December's issue of LawDotNews.

Partnership News: A New Chapter

2008-01-01 08:00:00

We are very excited to announce the changes taking place in 2008 with a new leadership style, and a new partner joining the ranks.