Well, 2018 has certainly been an eventful year! And from the looks of things, 2019 looks to be equally interesting. As the year draws to a close, now is a good time to pause, reflect, and give thanks for all that we have to be grateful for. And we truly treasure our subscribers, supporters and loyal fans! Thank you for giving us the opportunity to serve you. Our heartfelt gratitude goes to all our readers and customers, without whom our business could not exist. We thank you for all the support and encouragement that we continue to receive.
As most employers should know by now, dismissing an employee entails a two-pronged approach:
- Substantive fairness: the reason for the dismissal needs to be fair and justified; and
- Procedural fairness: the employer must hold a disciplinary hearing before dismissing an employee.
But what if the employee acts in such an appalling, inexcusable, unforgivable and utterly despicable manner that even an instantaneous dismissal seems too light a sentence? Is an immediate and unequivocal “You’re fired!” – without the benefit of a hearing – ever justified?
The rights of women undoubtedly took centre stage in 2017, culminating in the #MeToo campaign being crowned Time Magazine’s person of the year. Women are finally finding their voices and announcing to the world that enough is enough. But it isn’t just movie moguls, celebrities and other perpetrators in general who risk coming under fire for mistreating women. Employers should also take heed: complacency can be costly.
With every right comes a responsibility. And nowhere is this more apparent than with the right to freedom of expression. The ability to voice our opinions and express our individual views is indeed liberating. And certainly for a country like South Africa it is refreshing after being imprisoned for so many decades in the iron fist of apartheid’s censorship and indoctrination. But there are unfortunately still many people who simply don’t give a thought to the responsibility associated with freedom of speech. The responsibility to respect other people’s right not to be discriminated against. If nothing else, South Africa’s tumultuous past should have taught us how destructive hate speech is.
People who hold minority shares in a company often express concern about their rights being bulldozed by majority shareholders. But being the minority doesn’t necessarily mean you’re left without recourse where you find that you’re being unfairly treated. The rights of minority shareholders came under the spotlight in a recent court case.
In 1987 two enterprising individuals decided to start a business together and registered a company in which they were both named as the shareholders and directors. In due course new shareholders bought into the company, bringing the total number of shareholders to five. Over a period of time, three of the shareholders, who collectively held the majority shares in the company, started operating the business in a manner that undermined and prejudiced the two minority shareholders. Amongst other things, the majority shareholders:
Are you paying for an SABC TV licence, but don’t own a TV? You are not alone. There are many people who are technically eligible to cancel their TV licence and yet continue to pay the annual fee year after year. Reasons for this include:
- exasperation and finally giving up on the tedious cancellation process;
- fear of prosecution;
- not knowing how to go about cancelling their licence.
If you reside in South Africa and own a working television set, you are obliged by law to pay an annual licence fee to the SABC. Even if you never use your television. A television set is defined as any device designed or adapted to be capable of receiving a broadcast television signal, regardless whether it’s been relegated to a paperweight, dust-collector or computer monitor. But what if you no longer reside in South Africa, no longer own a television set or your television set no longer works? Well, that is where the challenge comes in. The SABC is quick to accept your licence fees and issue a licence – it is, after all, “the right thing to do”. But they’re not quite as efficient or forthcoming when it comes to cancelling a licence. Indeed, their website is remarkably helpful when it comes to applying and paying for your licence. Conversely, information about cancelling your licence is almost non-existent.
As 2017 draws to the end, we look back on all that we have achieved over the past year. And what a year it has been! In the 10 years that we have been operating, we have remained ever-aware of the evolution of our industry and the changes in the way people do business. This has driven the constant changes and improvements in our site and service offerings. Undoubtedly, the highlight of our year has been launching our new-and-improved Agreements Online website – the third major redesign in our 10-year-old life.
You’re lost in a complicated thought-process and the phone rings. Absently you answer it. It’s some guy whose name you didn’t catch, asking deeply personal questions like whether there’s enough money in your bank account to cover your credit card if you die. As you politely extricate yourself from the call, you see that another wayward email has nipped through your security net – this one is trying to sell you a discounted holiday to some secluded island. As you finally kill the call and junk the mail an SMS pings for your attention – you’ve been pre-approved for a loan! You seriously contemplate using that loan for that island holiday, if for no other reason than to escape this seemingly incurable marketing epidemic. But here’s the thing: consumers are finally receiving protection against these ploys.
Voetstoots: the common law principle
When someone buys goods, South Africa’s common law provides an implied warranty that the goods are sold free from defects. But if goods are sold “voetstoots” it means that the goods are sold “as is” and without any warranty. If it later transpires that there were defects in the goods the purchaser wouldn’t have any recourse against the seller. Except where the defect existed at the time of sale and the seller knew about it, yet failed to disclose the defect to the buyer. A sale contract containing a voetstoots clause wouldn’t protect a seller who knew about a defect but failed to disclose it, knowing that the sale may have fallen through, or the purchaser would have negotiated a reduced price. When the purchaser eventually finds out about the defect, the purchaser would have recourse against the seller to cancel the sale and reclaim the purchase price, alternatively to keep the goods but claim a reduction in the price.
A Shareholders’ Agreement and the Company’s MOI (Memorandum of Incorporation) go together like the proverbial horse-and-carriage. Before the new Companies Act, a private company’s Shareholder’s Agreement was king of this carriage, overriding any conflicting provision in the articles of association. But not anymore. In terms of the South African Companies Act, the terms of the company’s Memorandum of Incorporation override any conflicting provisions in the Shareholders’ Agreement. Does this mean that a Shareholder’s Agreement is no longer relevant? Not at all. A Shareholders’ Agreement neither replaces nor alters the MOI. A company’s Shareholders’ Agreement should complement its MOI. What this does mean, however, is that shareholders should pay careful attention to the MOI under which it is incorporated.