Hello Mr Darroll
Jackie Cameron here from Realestateweb. We're wondering whether you would like to comment on a reader question for our regular Realestateweb mailbox article?
Here is the question:
I have just moved into a garden cottage and do not have a written lease agreement with my landlord. After taking occupancy, I was advised by the landlord that planting up & maintaining the garden was my responsibility, as well as watering of the garden and the cost of the watering (I pay extra for water every month and have to use the tap in my cottage to water the plants). Does this sound like something that the landlord can insist upon, as I was under the impression that the interior of the cottage was my responsibility and the exterior was his? (Note: the garden I am “responsible” for is a small, fenced-off section around the front of the cottage).
Jackie
Dear Jackie, Here is the answer to your reader’s question:
The terms and conditions of your lease are contained in the agreement between you and your landlord which would have been entered into before you took occupation of the premises. It is undesirable to have a verbal agreement as the terms and conditions of the lease then depend on what you and the landlord respectively consider to be such terms and not on a written contract where the terms are stated and cannot be disputed (unless they are ambiguous). In terms of section 5(2) of the Rental Housing Act 50 of 1999, your landlord must, if you ask him, reduce the lease to writing. This should ideally have been done before you moved in. If you try to do this now, chances are that he will include a provision that you are responsible for the garden.
With things as they are at present, the landlord may not unilaterally impose additional terms on you after the terms and conditions of the lease have been agreed to. The landlord may not therefore insist that you water the garden and pay the cost of doing so.
The principle that you are responsible for the interior of the cottage and the landlord responsible for the exterior is a general one that is usually included in written contracts. There is an obligation on the landlord to make the leased property available in a condition reasonably fit for the purpose for which it is being let. The landlord can specifically contract out of maintaining the property or specify that the tenant is responsible for paying levies or taxes as additional charges. However if the contract is silent on these matters it is the landlord's responsibility to maintain the property and pay the taxes.
Wednesday, 23 September 2009
Monday, 24 August 2009
Small firms are viable - Letter of the Month - De Rebus April 2009
Small firms are viable
As a proud and viable sole practitioner I am outraged at the sweeping and arrogant generalisation of the title given to the news article in 2009 (Jan/Feb) DR 18: ‘Small firms no longer a viable option’.
How could anyone in his right mind make such a gloriously ridiculous assertion?
I looked in vain for any such assertion in the article itself. What I found were a number of practitioners who listed the disadvantages of practising as a one-person firm.
Some of the disadvantages mentioned were:
•
‘Losing work to Justice Centres’: I have any number of clients who are perfectly free to use the Justice Centres but prefer to use the services of a practising attorney because they perceive the latter to be in general more effective. I would like to see some concrete evidence to demonstrate that Justice Centres ‘get most of the work that could otherwise have been handled by a smaller firm’. More likely, they get most of the work that would otherwise not have been handled by anybody.
•
‘Clients moving away because of disgruntlement’: What an outrageous statement! Is there any evidence to show that more clients move away from small firms because of disgruntlement than they do from big firms? This allegation is totally and gratuitously unjustified.
•
‘Always under pressure due to carrying all the expenses’: Of course the larger firms have the advantage of being able to share many costs, but the cost of running an effective legal research facility, more than adequate for my needs, by no means puts me under pressure. I have a better equipped library than I have seen in many a larger firm and the cost of maintaining it certainly does not put me under pressure.
•
A one-man practitioner ‘has to look after everything’: Exactly – that’s what makes it so easy. He has his finger on the pulse because it is his own pulse, without any number of nooks and crannies in the structure where inefficiencies and unacceptable practices may lurk.
•
‘Professional development is limited’ – what nonsense! It is just as much, if not more, open to sole practitioners to attend seminars, explore uncharted legal territories via publications and the Internet, etc than to any modular partner in a larger firm bustling away in his little specialist legal cubicle.
•
He is ‘always trying to catch up’ – this statement is amazing in its pomposity and presumptuousness. Who is Louis Rood of Fairbridges to apply this breathtaking generalisation to every sole practitioner in the country? According to Hortors, he is the senior partner in a firm, the Cape Town office of which alone has about 20 partners. Of course he never tries to catch up. And how he presumes to know that only sole practitioners try to catch up, I’m not quite sure. Methinks that all effective and successful practitioners are busy ‘catching up’, because if they have caught up, it means they do not have any work to do.
•
‘Delivery can be patchy’ – where does he get this from? I have an endless stream of clients who have left larger firms in utter disillusionment not only with their patchy delivery but also with the extraordinary amounts they charge for it.
•
‘You do not bill properly’ – and why not? What is stopping one, simply because he is a sole practitioner, from billing properly? Another preposterous and arbitrary statement.
•
There is ‘no time to market your firm’: How much time does it take to market one’s firm? Ten minutes or quarter of an hour to place one’s details on a relevant Internet website repeated five times or so is as much marketing as I need because if I had more I would have too much.
•
As for clients ‘moving to bigger firms’, this is a pipe dream. It would be interesting to have objective figures on the relative interflow between large and small firms but, in the absence of those, the allegation made is akin to fiction.
•
Oh dear, oh dear: We one-man bands get sick, we go to funerals, we go on holiday. So? We make the necessary arrangements and get on with it. Let the secretary run the office. Get in a locum. What is the problem? Where is the strain?
There is more, but what has been mentioned is more than enough. Come on you negative old pessimists! It seems amazing to me that a panel discussion on the nature of individual practitioners versus big law firms at the Cape Law Society’s annual general meeting, appears only to have had a single participant making a positive observation about sole practitioners – and that accompanied by gloom and doom. Little mention of the joy of being one’s own master instead of locked into a private sector version of the civil service; the satisfaction of always dealing personally with one’s clients instead of fobbing them off to some underling; the fun of being nimble, swift, sometimes a little creatively unorthodox; the enjoyment of informality and relaxed if intense productivity – ah dear big firm colleagues, you do not know what you are missing. On second thoughts, perhaps you do. Is envy the reason for all the dark and miserable comment?
Roland Darroll,
attorney, Cape Town
As a proud and viable sole practitioner I am outraged at the sweeping and arrogant generalisation of the title given to the news article in 2009 (Jan/Feb) DR 18: ‘Small firms no longer a viable option’.
How could anyone in his right mind make such a gloriously ridiculous assertion?
I looked in vain for any such assertion in the article itself. What I found were a number of practitioners who listed the disadvantages of practising as a one-person firm.
Some of the disadvantages mentioned were:
•
‘Losing work to Justice Centres’: I have any number of clients who are perfectly free to use the Justice Centres but prefer to use the services of a practising attorney because they perceive the latter to be in general more effective. I would like to see some concrete evidence to demonstrate that Justice Centres ‘get most of the work that could otherwise have been handled by a smaller firm’. More likely, they get most of the work that would otherwise not have been handled by anybody.
•
‘Clients moving away because of disgruntlement’: What an outrageous statement! Is there any evidence to show that more clients move away from small firms because of disgruntlement than they do from big firms? This allegation is totally and gratuitously unjustified.
•
‘Always under pressure due to carrying all the expenses’: Of course the larger firms have the advantage of being able to share many costs, but the cost of running an effective legal research facility, more than adequate for my needs, by no means puts me under pressure. I have a better equipped library than I have seen in many a larger firm and the cost of maintaining it certainly does not put me under pressure.
•
A one-man practitioner ‘has to look after everything’: Exactly – that’s what makes it so easy. He has his finger on the pulse because it is his own pulse, without any number of nooks and crannies in the structure where inefficiencies and unacceptable practices may lurk.
•
‘Professional development is limited’ – what nonsense! It is just as much, if not more, open to sole practitioners to attend seminars, explore uncharted legal territories via publications and the Internet, etc than to any modular partner in a larger firm bustling away in his little specialist legal cubicle.
•
He is ‘always trying to catch up’ – this statement is amazing in its pomposity and presumptuousness. Who is Louis Rood of Fairbridges to apply this breathtaking generalisation to every sole practitioner in the country? According to Hortors, he is the senior partner in a firm, the Cape Town office of which alone has about 20 partners. Of course he never tries to catch up. And how he presumes to know that only sole practitioners try to catch up, I’m not quite sure. Methinks that all effective and successful practitioners are busy ‘catching up’, because if they have caught up, it means they do not have any work to do.
•
‘Delivery can be patchy’ – where does he get this from? I have an endless stream of clients who have left larger firms in utter disillusionment not only with their patchy delivery but also with the extraordinary amounts they charge for it.
•
‘You do not bill properly’ – and why not? What is stopping one, simply because he is a sole practitioner, from billing properly? Another preposterous and arbitrary statement.
•
There is ‘no time to market your firm’: How much time does it take to market one’s firm? Ten minutes or quarter of an hour to place one’s details on a relevant Internet website repeated five times or so is as much marketing as I need because if I had more I would have too much.
•
As for clients ‘moving to bigger firms’, this is a pipe dream. It would be interesting to have objective figures on the relative interflow between large and small firms but, in the absence of those, the allegation made is akin to fiction.
•
Oh dear, oh dear: We one-man bands get sick, we go to funerals, we go on holiday. So? We make the necessary arrangements and get on with it. Let the secretary run the office. Get in a locum. What is the problem? Where is the strain?
There is more, but what has been mentioned is more than enough. Come on you negative old pessimists! It seems amazing to me that a panel discussion on the nature of individual practitioners versus big law firms at the Cape Law Society’s annual general meeting, appears only to have had a single participant making a positive observation about sole practitioners – and that accompanied by gloom and doom. Little mention of the joy of being one’s own master instead of locked into a private sector version of the civil service; the satisfaction of always dealing personally with one’s clients instead of fobbing them off to some underling; the fun of being nimble, swift, sometimes a little creatively unorthodox; the enjoyment of informality and relaxed if intense productivity – ah dear big firm colleagues, you do not know what you are missing. On second thoughts, perhaps you do. Is envy the reason for all the dark and miserable comment?
Roland Darroll,
attorney, Cape Town
Sunday, 23 August 2009
reckless, superficial and irresponsible advice
________________________________________
Roland Darroll BA.LLB (UCT) BA (Psych) (UNISA) Tax Cert (UCT)
Si parla Italiano. Entitled to appear in the High Court
________________________________________
In association with Ince Wood & Raubenheimer,
Attorneys, Notaries & Conveyancers, Cape Town
Dear Robert
Your “rough guide” [Sunday Times “Money” 23 August 2009, page 16] was alarmingly rough:
1. “Customary marriages are deemed to be in community of property unless couples draw up an ante-nuptial contract.” Section 1 of The Recognition of Customary Marriages Act 120 of 1998 defines a “customary marriage” as a marriage concluded in accordance with customary law, ie the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. This has nothing to do with the choice of matrimonial property regimes under the South African common law. Customary marriage has concepts such as the kraal (household); the kraalhead; the payment of ikhazi, the ubulunga beast and so on. It applies only to the tribal facet of our common society’s diamond. It is also polygamous in that a husband in a customary marriage is able to have more than one wife. It is not legally possible for a party contemplating a customary marriage to enter into an ante-nuptial contract because its matrimonial property regime is predetermined. It certainly is not possible for a customary marriage to be “deemed to be in community of property” as you allege. The matrimonial property regime that applies to customary marriages provides that the kraalhead is the sole owner of the “household property” as a whole, while the wife concerned has “full status and capacity” on the basis of equality with her husband in relation to her own “house property” only. I doubt whether you were addressing yourself to that audience. Few of them would be reading the Sunday Times.
2. “Bonds are registered in the names of both spouses, so cannot be bought or sold without consent.” Bonds as such cannot be bought or sold at all. A bond is security over property belonging to the debtor for money which he has borrowed from the bondholder, entitling the latter to have a secured claim against the proceeds of the sale of such property should the amount of the loan not be repaid. It is the underlying property that is bought and sold. A bond is then registered against that property in favour of the person or entity that has granted a loan to the owner of the property.
3. “Community of property complicates divorce”. Why ? Just because a divorcing party delays regularising the provisions of the divorce order, which you cite as an example ? This is a very narrow and unusual circumstance. In a community of property divorce the net assets of the joint estate are simply split down the middle with each party taking their own half. There are therefore normally no complications whatsoever.
4. ”... widows starving while waiting for their late husband's estate to be wound up”. This can occur just as easily in a community of property marriage or one without accrual where the survivor has no significant assets.
5. “ANC with accrual means that while assets owned before marriage remain separate, wealth acquired through joint effort after the marriage is pooled.” Wrong. In a with-accrual marriage, wealth is acquired by each of the parties separately both before and after the marriage. There is no change in the patrimonial marriage relationship between the parties to the marriage before as opposed to after the marriage. This is because the accrual only comes into effect once the marriage has come to an end. Only then, and not when “wealth is acquired through joint effort after the marriage”, is such wealth pooled and divided.
6. The accrual system “will be a problem should the first-dying spouse have the larger estate. The accrual claim will then be a liability in the estate and the accrual claim will be paid out ... before any bequests and inheritances.” Why should this be a problem ? It is in fact an advantage to the surviving spouse because, as you rightly state, payment of liabilities are generally made before those of bequests and inheritances.
7. “If you are planning to get divorced at the time of marriage...” Come again ? Can you possibly be serious? I know we are pretty cynical about marriage these days but I didn't realise that anyone could be planning to get divorced at the time of marriage.
8. “ANC without accrual is probably the way to go.” This is a crassly simplistic view. The accrual system has been carefully sculpted and introduced into our contemporary marriage law in order to gain the benefit of the separate estates regime during the marriage combined with what is in effect a community of property situation at its end. It allows maximum freedom to both parties to act in their own financial interests during the marriage. It also offers a great benefit to the spouse (generally the wife) who has sacrificed her financial earning capacity for a period in the interests of supporting her husband and bearing and caring for their children. Should the parties go their different ways, she is at least entitled to a significant share of the increase in his estate while she was busy caring for his offspring and providing a nest for himself and his family being therefore unable to increase hers.
ANC without accrual is probably the best way to go for middle-aged couples who have already built up substantial financial estates in their own right. Younger couples just starting out should consider the accrual alternative.
I hope that, from the above, you will realise that the reckless and superficial advice and analysis that you have offered to your readers is irresponsible to say the least. You owe them both an apology and a clarification.
Best wishes
Roland Darroll
Darrolls Attorneys
ATTORNEY - NOTARY - CONVEYANCER
Member No. 10772
________________________________________
Street Address: Thibault Chambers, 30 Avenue Thibault, Newlands 7700, Cape Town, South Africa - Postal Address: PO Box 23454, Claremont 7735, Cape Town
Tel (Office): + 27 21 671 6408 - Cell: 082 925 5512 - Fax: + 27 21 683 4478 / 0866126375
E-mail: roland@darroll-law.com - Website: www.darroll-law.com - Blogsite: http://darrollsattorneys.blogspot.com
Roland Darroll BA.LLB (UCT) BA (Psych) (UNISA) Tax Cert (UCT)
Si parla Italiano. Entitled to appear in the High Court
________________________________________
In association with Ince Wood & Raubenheimer,
Attorneys, Notaries & Conveyancers, Cape Town
Dear Robert
Your “rough guide” [Sunday Times “Money” 23 August 2009, page 16] was alarmingly rough:
1. “Customary marriages are deemed to be in community of property unless couples draw up an ante-nuptial contract.” Section 1 of The Recognition of Customary Marriages Act 120 of 1998 defines a “customary marriage” as a marriage concluded in accordance with customary law, ie the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. This has nothing to do with the choice of matrimonial property regimes under the South African common law. Customary marriage has concepts such as the kraal (household); the kraalhead; the payment of ikhazi, the ubulunga beast and so on. It applies only to the tribal facet of our common society’s diamond. It is also polygamous in that a husband in a customary marriage is able to have more than one wife. It is not legally possible for a party contemplating a customary marriage to enter into an ante-nuptial contract because its matrimonial property regime is predetermined. It certainly is not possible for a customary marriage to be “deemed to be in community of property” as you allege. The matrimonial property regime that applies to customary marriages provides that the kraalhead is the sole owner of the “household property” as a whole, while the wife concerned has “full status and capacity” on the basis of equality with her husband in relation to her own “house property” only. I doubt whether you were addressing yourself to that audience. Few of them would be reading the Sunday Times.
2. “Bonds are registered in the names of both spouses, so cannot be bought or sold without consent.” Bonds as such cannot be bought or sold at all. A bond is security over property belonging to the debtor for money which he has borrowed from the bondholder, entitling the latter to have a secured claim against the proceeds of the sale of such property should the amount of the loan not be repaid. It is the underlying property that is bought and sold. A bond is then registered against that property in favour of the person or entity that has granted a loan to the owner of the property.
3. “Community of property complicates divorce”. Why ? Just because a divorcing party delays regularising the provisions of the divorce order, which you cite as an example ? This is a very narrow and unusual circumstance. In a community of property divorce the net assets of the joint estate are simply split down the middle with each party taking their own half. There are therefore normally no complications whatsoever.
4. ”... widows starving while waiting for their late husband's estate to be wound up”. This can occur just as easily in a community of property marriage or one without accrual where the survivor has no significant assets.
5. “ANC with accrual means that while assets owned before marriage remain separate, wealth acquired through joint effort after the marriage is pooled.” Wrong. In a with-accrual marriage, wealth is acquired by each of the parties separately both before and after the marriage. There is no change in the patrimonial marriage relationship between the parties to the marriage before as opposed to after the marriage. This is because the accrual only comes into effect once the marriage has come to an end. Only then, and not when “wealth is acquired through joint effort after the marriage”, is such wealth pooled and divided.
6. The accrual system “will be a problem should the first-dying spouse have the larger estate. The accrual claim will then be a liability in the estate and the accrual claim will be paid out ... before any bequests and inheritances.” Why should this be a problem ? It is in fact an advantage to the surviving spouse because, as you rightly state, payment of liabilities are generally made before those of bequests and inheritances.
7. “If you are planning to get divorced at the time of marriage...” Come again ? Can you possibly be serious? I know we are pretty cynical about marriage these days but I didn't realise that anyone could be planning to get divorced at the time of marriage.
8. “ANC without accrual is probably the way to go.” This is a crassly simplistic view. The accrual system has been carefully sculpted and introduced into our contemporary marriage law in order to gain the benefit of the separate estates regime during the marriage combined with what is in effect a community of property situation at its end. It allows maximum freedom to both parties to act in their own financial interests during the marriage. It also offers a great benefit to the spouse (generally the wife) who has sacrificed her financial earning capacity for a period in the interests of supporting her husband and bearing and caring for their children. Should the parties go their different ways, she is at least entitled to a significant share of the increase in his estate while she was busy caring for his offspring and providing a nest for himself and his family being therefore unable to increase hers.
ANC without accrual is probably the best way to go for middle-aged couples who have already built up substantial financial estates in their own right. Younger couples just starting out should consider the accrual alternative.
I hope that, from the above, you will realise that the reckless and superficial advice and analysis that you have offered to your readers is irresponsible to say the least. You owe them both an apology and a clarification.
Best wishes
Roland Darroll
Darrolls Attorneys
ATTORNEY - NOTARY - CONVEYANCER
Member No. 10772
________________________________________
Street Address: Thibault Chambers, 30 Avenue Thibault, Newlands 7700, Cape Town, South Africa - Postal Address: PO Box 23454, Claremont 7735, Cape Town
Tel (Office): + 27 21 671 6408 - Cell: 082 925 5512 - Fax: + 27 21 683 4478 / 0866126375
E-mail: roland@darroll-law.com - Website: www.darroll-law.com - Blogsite: http://darrollsattorneys.blogspot.com
Friday, 28 September 2007
WHEN CAN I HAVE A WILL SET ASIDE EVEN THOUGH THE FORMALITIES HAVE BEEN OBSERVED ?
1. A will which is complete and regular on the face of it (ie where all the prescribed formalities have been complied with) is presumed to be valid until the contrary has been proved.
2. Before issuing letters of executorship, the Master conducts a preliminary investigation and checks about 10 or so technical aspects, eg whether a witness appears to be a beneficiary named in the will (in which case he would not be entitled to inherit).
3. A will may be invalid inter alia –
3.1 where the testator does not realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death; or
3.2 The testator executes the will as a result of fraud, duress or undue influence. Where a will has been signed in any of these circumstances, the testator is not acting voluntarily and one of the bases required for a valid will is missing.
4. The expression of a testator's last wishes must be the result of the exercise of the testator's own will. Undue influence has been described as an influence which has 'caused the execution of a document pretending to express a testator's mind which really does not express his mind but something else which he did not really mean'.
5. In order to constitute undue influence the behaviour of the influencer must result in the substitution of her wishes for the wishes of the testator.
6. The legal responsibility for establishing and influence rests upon the party who alleges that undue influence was brought to bear on the testator. Whether or not there has been undue influence is a question which must be determined with reference to the facts and circumstances of each particular case. The mental state of the testator and the testator's ability to resist instigation and prompting are all factors to be considered. The relationship between the parties may also be important and may give rise to a metus reverentialis (literally, intimidation arising out of over-respect/fear [on the part of the intimidated party]). The relationship might be such that the request by the one party to the other might be regarded by the latter as a command which must be obeyed. The mere existence, however, of a relationship of a particular kind does not give rise to a presumption that the wishes of another has been substituted for the testator's wishes. This substitution has to be proved.
7. If, after the execution of the will, a period of time lapses during which the testator could have altered the will should he have wished to do so, his failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes or that the testator had subsequently voluntarily and tacitly confirmed that will.
2. Before issuing letters of executorship, the Master conducts a preliminary investigation and checks about 10 or so technical aspects, eg whether a witness appears to be a beneficiary named in the will (in which case he would not be entitled to inherit).
3. A will may be invalid inter alia –
3.1 where the testator does not realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death; or
3.2 The testator executes the will as a result of fraud, duress or undue influence. Where a will has been signed in any of these circumstances, the testator is not acting voluntarily and one of the bases required for a valid will is missing.
4. The expression of a testator's last wishes must be the result of the exercise of the testator's own will. Undue influence has been described as an influence which has 'caused the execution of a document pretending to express a testator's mind which really does not express his mind but something else which he did not really mean'.
5. In order to constitute undue influence the behaviour of the influencer must result in the substitution of her wishes for the wishes of the testator.
6. The legal responsibility for establishing and influence rests upon the party who alleges that undue influence was brought to bear on the testator. Whether or not there has been undue influence is a question which must be determined with reference to the facts and circumstances of each particular case. The mental state of the testator and the testator's ability to resist instigation and prompting are all factors to be considered. The relationship between the parties may also be important and may give rise to a metus reverentialis (literally, intimidation arising out of over-respect/fear [on the part of the intimidated party]). The relationship might be such that the request by the one party to the other might be regarded by the latter as a command which must be obeyed. The mere existence, however, of a relationship of a particular kind does not give rise to a presumption that the wishes of another has been substituted for the testator's wishes. This substitution has to be proved.
7. If, after the execution of the will, a period of time lapses during which the testator could have altered the will should he have wished to do so, his failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes or that the testator had subsequently voluntarily and tacitly confirmed that will.
Wednesday, 19 September 2007
A Pledge to Our Clients
.
.
# We Seek to Understand the Big Picture
We seek to give value to our clients. We ask questions and do lots of listening. We seek to understand how the matter you are asking us to handle fits into the big picture. Where relevant, we will seek to understand the dynamics and trends of the industry in which you compete or the context in which you operate. We come to the client for consultation or in our own office, as preferred.
# We Seek to Establish our Client’s Expectations and Then Exceed Them
We walk our client through how we propose to handle the matter and what he/she can expect in terms of results and timelines. We create a reasonable set of expectations and do our best to beat them. If we are unable to meet our commitments, or the results are not likely to be what we anticipated, we share that information with our client immediately.
# We Seek Always to Follow Through on our Commitments
We set reasonable deadlines and do our best to stick to them.
# We Return Telephone Calls as Promptly as Possible
Our policy is to return all calls as soon as possible but on the same day as received, at the latest.
# We Will Communicate with You in the Manner You Prefer
We will ask you the method and frequency of communication you prefer and deliver our updates and progress reports accordingly.
# We will not “Over-lawyer”
We will not research issues to death and uncover every old case and precedent to make sure we are 100% right, thereby raising your bill unnecessarily. We will do what’s right for you.
# We Strive Not to Send Surprise Invoices
We discuss estimated fees and costs up front with you. We try to give you an estimate of our fee and discuss any unforeseen developments that may arise. We talk through the options and seek your direction on how you want to handle them.
# We Appreciate Your Business
We realise that there is more to practising law than providing quality legal work. We want to provide great service, too. We strive to practise these golden rules consistently, so as to end up with loyal, long-term clients and an enjoyable and gratifying legal practice.
This blog is based on original material and material from the website of the American Bar Association © 2003-2007
.
# We Seek to Understand the Big Picture
We seek to give value to our clients. We ask questions and do lots of listening. We seek to understand how the matter you are asking us to handle fits into the big picture. Where relevant, we will seek to understand the dynamics and trends of the industry in which you compete or the context in which you operate. We come to the client for consultation or in our own office, as preferred.
# We Seek to Establish our Client’s Expectations and Then Exceed Them
We walk our client through how we propose to handle the matter and what he/she can expect in terms of results and timelines. We create a reasonable set of expectations and do our best to beat them. If we are unable to meet our commitments, or the results are not likely to be what we anticipated, we share that information with our client immediately.
# We Seek Always to Follow Through on our Commitments
We set reasonable deadlines and do our best to stick to them.
# We Return Telephone Calls as Promptly as Possible
Our policy is to return all calls as soon as possible but on the same day as received, at the latest.
# We Will Communicate with You in the Manner You Prefer
We will ask you the method and frequency of communication you prefer and deliver our updates and progress reports accordingly.
# We will not “Over-lawyer”
We will not research issues to death and uncover every old case and precedent to make sure we are 100% right, thereby raising your bill unnecessarily. We will do what’s right for you.
# We Strive Not to Send Surprise Invoices
We discuss estimated fees and costs up front with you. We try to give you an estimate of our fee and discuss any unforeseen developments that may arise. We talk through the options and seek your direction on how you want to handle them.
# We Appreciate Your Business
We realise that there is more to practising law than providing quality legal work. We want to provide great service, too. We strive to practise these golden rules consistently, so as to end up with loyal, long-term clients and an enjoyable and gratifying legal practice.
This blog is based on original material and material from the website of the American Bar Association © 2003-2007
Wednesday, 12 September 2007
HOW TO GET THE BEST OUT OF YOUR ATTORNEY
Often legal clients are disillusioned with their attorneys. Sometimes this disillusionment may be justified. But just as often the lack of satisfactory service from the attorney is often due to the ignorance or inability of the client. A client needs to know how to use the lawyer's services to get the best from him.
The First Consultation
When you go in for your first interview with a lawyer or instruct him for the first time by phone, fax or e-mail, you should:
1. organise your documents – chronologically (date-wise). An index or table of contents is also useful. The index should also give a brief description of the documents (see the example below ). Provide him with all the relevant documents so that he can prepare your case well.
2. Write your story in a page or two. Bring it with you or fax or e-mail it. Cover all the essential matters. It's best typed but a hand printed document is acceptable. Your story should be organised chronologically. This saves the attorney's time. He no longer has to take down in a consultation what you could have written or typed out beforehand. You use his time efficiently and save unnecessary fees.
3. Write out any questions you may have. How long will the case take? What are my chances of success? What are the chances of a negotiated settlement ? (Most civil cases are settled.)
4. Consider bringing a friend with you to the interview. Ask the lawyer whether this would be appropriate. For some cases, it's not a good idea. However, a friend in the interview could provide moral support.
How to Communicate Effectively with your Attorney:
1. If you change your address, phone number or e-mail, let him know straight away.
2. If he asks you to provide information or documents, respond promptly.
3. If you are going to be away for a while such as during holidays, inform his office.
4. In many cases the best way to communicate with the lawyer is through his secretary. Get to know the secretary. Lawyers tend to be in and out of court or in meetings. Secretaries are always there.
5. Never take a legal decision (eg whether or not to accept a settlement offer) without consulting your attorney first.
6. Don’t phone every day, but don't hesitate to phone if you want to know what's going on, either. Consider whether your phone call is necessary. Can you save your questions for the next meeting? Each phone call will use up your lawyer's time and your money - his time and advice are his stock in trade. But busy lawyers sometimes need nagging clients !
7. Pay his bills promptly. The clients that enjoy the best service are inevitably the best payers. There is a subtle psychology at work in any lawyer's brain that tends to give the rewarding client's file priority in preference to a client who is difficult or a non-payer.
8. Should you terminate your lawyer's mandate, be the first to tell him. Don't let him learn of it through third parties.
You and Your Lawyer Are A Team
1. Don't think your attorney is all-knowing and all-capable while you have nothing to contribute.
2. While your attorney needs to learn about, and often imagine, what actually happened in leading up to the dispute or situation, you have lived through it. This experience is invaluable to your attorney. Share it with him to as great an extent as possible. Provide the best and fullest possible information you can. Rather give him too much than too little. Don't hesitate to suggest some strategy or step that he might not have thought of, so that together you can come up with best strategies.
3. Try to gain as much of your own legal information as you can. Use that information to leverage more effectively the legal advice from your attorney. Educating yourself on the law, allows you to get more out of your attorney and could enable your attorney to obtain better results for you at a lower cost.
4. The more you know about what your lawyer can do for you, the more synergistic the relationship. Blogs, government websites and law firm websites are full of valuable information about the law – even taking out library books. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be, and the more intelligent your joint decision-making.
5. Educating yourself will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal wellbeing. Paying an attorney merely to regurgitate legal information wastes time and money. Paying a skilled attorney to propose a legal course of action on a legal issue on which you have educated yourself may well be the best money you spend.
How to Reduce Your Fees
There are ways in which you can get your legal fee reduced to make them more affordable:
1. make sure that you discuss your case as well as your personal finances explicitly with your lawyer.
2. elucidate how your case can be advantageous for him and his firm;
3. always, consider hiring a lawyer associated with a smaller firm – they are almost always less expensive;
4. consider doing a significant amount of footwork yourself. This will reduce the legal fee;
5. if you have a lot of legal work, and you are in need of a legal representative for the long-term, you can negotiate, and ask for a fee reduction;
6. your lawyer will be obliged to charge a lesser fee if you prepare evidence and documents well, saving the lawyer many of these tasks;
7. e-mails are better than phone calls. Do not speak for longer than necessary. Your lawyer needs to charge you for his time if he is to earn a living. So be short and precise;
8. be sure to obtain a written fee agreement/mandate at the outset:
8.1.1 a fee agreement is essential. An attorney will serve you based on what you provide him. Be sincere when it comes to paying him. Make sure you pay his entire fee at the right time.
8.1.2 when you sign a fee agreement with an attorney, be aware of how the case will be handled, and in what way the fee will be made up. The agreement should clearly state all the terms and conditions.
8.1.3 mention clearly what services you want, and what result you anticipate. Ask questions about the fee agreement, and try to understand every aspect of it.
8.1.4 remember that whatever you estimate about your case is just a rough idea of the expenses. The actual cost may vary with what you have in mind and what turns out to need doing.
8.1.5 Discuss terms in the fee agreement that you are not happy with. Your attorney will probably be willing to explain them or change them where he feels your objections are reasonable. If he won't, go to someone else. Better at the outset than later.
Avoiding Fee Disputes
1. When you hire a lawyer, make sure that you ask for the “fee” terms and conditions to be written down in the mandate. Obtain a cost estimate. Expect to pay a deposit.
2. Familiarise yourself with the fee recommendations made by the attorney's Law Society. This will give you an idea as to what the Society considers reasonable.
3. Keep a record of the advances given to the lawyer, meetings held along with duration and what was discussed, phone calls made, court appearances etc.;
4. Whenever some discrepancies come to your attention while checking your lawyer's bills, don't hesitate - get your doubts cleared;
5. Bear in mind that even if you win a case and the court orders the other side to pay your legal costs, you'll still have to pay about a third of the costs because your attorney's fees (attorney-client costs) will be higher than the costs allowed by the court (party-party costs).
6. If a fee dispute still arises, settle it immediately with the help of the following tips:
6.1 Discuss billing in a meeting with the lawyer. Make sure that the amounts that need clarification or verification are highlighted;
6.2 consider the evaluation (taxation) services of the relevant Law Society. In matters not involving litigation (trusts, contracts etc.) the Society will evaluate ("tax") your bill after hearing both sides. Where a court case is involved, approach the Clerk of the Court or the High Court Registrar to determine the amount owing;
6.3 You can hire another lawyer to check the accuracy and validity of the bill;
6.4 in case of injustice, you have the right to issue summons against the lawyer;
6.5 you can also file a complaint against the lawyer with the Law Society.
An Attorney for Your Business or Personal Life
1. Whenever you take a step with legal implications (eg leases, partnerships, shareholders/members agreements/employment contracts ) – consult an attorney first. Don't sign first and then run to an attorney when something goes wrong.
2. There are many legal issues related to a business. Signing a new contract or an agreement is bound to have legal aspects associated with it. Be proactive to avoid legal issues before they backfire on you. Make sure that contract is properly drawn up. Don't wait until something goes wrong. It will be too late. The answer is that you should hire an attorney for your business. He will not only help you when you are stuck in any legal problem but also to avoid unwelcome litigation in the first place.
If it's Justified – Say Thank You !
Nothing is more appreciated by a lawyer or secretary than a thank you – if they deserve it. You will boost his morale and make him keener to serve your needs. If you want your case to stand out, follow the thank you rule.
Footnotes
1. In addition to original material from Darrolls Attorneys, this article is based on material from the following:
a) An article by Adv David Mossop QC of The Canadian Community Legal Assistance Society, the publication of which was made possible by funding from the British Columbia Law Foundation. Its material may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Putting this material on the web for commercial or non-commercial purposes is prohibited without the Community's written consent. Community Legal Assistance Society, Suite 800, 1281 West Georgia St, Vancouver, B.C., V6E 3J7; Tel: 604-685-3425; Fax: 604-685-7611; Toll Free: 1-888-685-6222; websites: http://www.clasbc.net/ & http://www2.povnet.org/clas
b) Brett J. Trout, P.C., 516 Walnut Street, Des Moines, IA 50309-4106; Phone 515.288.9263; Fax 515.280.7114; E-mail: Trout@BrettTrout.com; Website: http://www.bretttrout.com
c) articles by Sumit Bhatnagar and Parul Aggarwal on the website: www.ezinearticles.com.
2. SAMPLE INDEX OF DOCUMENTS
DATE DESCRIPTION Nr.
20 Jan Letter from Joe Smith to Jane Doe…………………………… 1
03 Feb Copy of Statement from the XXX Bank ……………………. 2
07 Mar Photograph of damaged property at 123 Anywhere Street, Cape Town 3
3.See for instance "Non-litigious fees" on the website of the Cape Law Society: http://www.capelawsoc.law.za/
The First Consultation
When you go in for your first interview with a lawyer or instruct him for the first time by phone, fax or e-mail, you should:
1. organise your documents – chronologically (date-wise). An index or table of contents is also useful. The index should also give a brief description of the documents (see the example below ). Provide him with all the relevant documents so that he can prepare your case well.
2. Write your story in a page or two. Bring it with you or fax or e-mail it. Cover all the essential matters. It's best typed but a hand printed document is acceptable. Your story should be organised chronologically. This saves the attorney's time. He no longer has to take down in a consultation what you could have written or typed out beforehand. You use his time efficiently and save unnecessary fees.
3. Write out any questions you may have. How long will the case take? What are my chances of success? What are the chances of a negotiated settlement ? (Most civil cases are settled.)
4. Consider bringing a friend with you to the interview. Ask the lawyer whether this would be appropriate. For some cases, it's not a good idea. However, a friend in the interview could provide moral support.
How to Communicate Effectively with your Attorney:
1. If you change your address, phone number or e-mail, let him know straight away.
2. If he asks you to provide information or documents, respond promptly.
3. If you are going to be away for a while such as during holidays, inform his office.
4. In many cases the best way to communicate with the lawyer is through his secretary. Get to know the secretary. Lawyers tend to be in and out of court or in meetings. Secretaries are always there.
5. Never take a legal decision (eg whether or not to accept a settlement offer) without consulting your attorney first.
6. Don’t phone every day, but don't hesitate to phone if you want to know what's going on, either. Consider whether your phone call is necessary. Can you save your questions for the next meeting? Each phone call will use up your lawyer's time and your money - his time and advice are his stock in trade. But busy lawyers sometimes need nagging clients !
7. Pay his bills promptly. The clients that enjoy the best service are inevitably the best payers. There is a subtle psychology at work in any lawyer's brain that tends to give the rewarding client's file priority in preference to a client who is difficult or a non-payer.
8. Should you terminate your lawyer's mandate, be the first to tell him. Don't let him learn of it through third parties.
You and Your Lawyer Are A Team
1. Don't think your attorney is all-knowing and all-capable while you have nothing to contribute.
2. While your attorney needs to learn about, and often imagine, what actually happened in leading up to the dispute or situation, you have lived through it. This experience is invaluable to your attorney. Share it with him to as great an extent as possible. Provide the best and fullest possible information you can. Rather give him too much than too little. Don't hesitate to suggest some strategy or step that he might not have thought of, so that together you can come up with best strategies.
3. Try to gain as much of your own legal information as you can. Use that information to leverage more effectively the legal advice from your attorney. Educating yourself on the law, allows you to get more out of your attorney and could enable your attorney to obtain better results for you at a lower cost.
4. The more you know about what your lawyer can do for you, the more synergistic the relationship. Blogs, government websites and law firm websites are full of valuable information about the law – even taking out library books. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be, and the more intelligent your joint decision-making.
5. Educating yourself will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal wellbeing. Paying an attorney merely to regurgitate legal information wastes time and money. Paying a skilled attorney to propose a legal course of action on a legal issue on which you have educated yourself may well be the best money you spend.
How to Reduce Your Fees
There are ways in which you can get your legal fee reduced to make them more affordable:
1. make sure that you discuss your case as well as your personal finances explicitly with your lawyer.
2. elucidate how your case can be advantageous for him and his firm;
3. always, consider hiring a lawyer associated with a smaller firm – they are almost always less expensive;
4. consider doing a significant amount of footwork yourself. This will reduce the legal fee;
5. if you have a lot of legal work, and you are in need of a legal representative for the long-term, you can negotiate, and ask for a fee reduction;
6. your lawyer will be obliged to charge a lesser fee if you prepare evidence and documents well, saving the lawyer many of these tasks;
7. e-mails are better than phone calls. Do not speak for longer than necessary. Your lawyer needs to charge you for his time if he is to earn a living. So be short and precise;
8. be sure to obtain a written fee agreement/mandate at the outset:
8.1.1 a fee agreement is essential. An attorney will serve you based on what you provide him. Be sincere when it comes to paying him. Make sure you pay his entire fee at the right time.
8.1.2 when you sign a fee agreement with an attorney, be aware of how the case will be handled, and in what way the fee will be made up. The agreement should clearly state all the terms and conditions.
8.1.3 mention clearly what services you want, and what result you anticipate. Ask questions about the fee agreement, and try to understand every aspect of it.
8.1.4 remember that whatever you estimate about your case is just a rough idea of the expenses. The actual cost may vary with what you have in mind and what turns out to need doing.
8.1.5 Discuss terms in the fee agreement that you are not happy with. Your attorney will probably be willing to explain them or change them where he feels your objections are reasonable. If he won't, go to someone else. Better at the outset than later.
Avoiding Fee Disputes
1. When you hire a lawyer, make sure that you ask for the “fee” terms and conditions to be written down in the mandate. Obtain a cost estimate. Expect to pay a deposit.
2. Familiarise yourself with the fee recommendations made by the attorney's Law Society. This will give you an idea as to what the Society considers reasonable.
3. Keep a record of the advances given to the lawyer, meetings held along with duration and what was discussed, phone calls made, court appearances etc.;
4. Whenever some discrepancies come to your attention while checking your lawyer's bills, don't hesitate - get your doubts cleared;
5. Bear in mind that even if you win a case and the court orders the other side to pay your legal costs, you'll still have to pay about a third of the costs because your attorney's fees (attorney-client costs) will be higher than the costs allowed by the court (party-party costs).
6. If a fee dispute still arises, settle it immediately with the help of the following tips:
6.1 Discuss billing in a meeting with the lawyer. Make sure that the amounts that need clarification or verification are highlighted;
6.2 consider the evaluation (taxation) services of the relevant Law Society. In matters not involving litigation (trusts, contracts etc.) the Society will evaluate ("tax") your bill after hearing both sides. Where a court case is involved, approach the Clerk of the Court or the High Court Registrar to determine the amount owing;
6.3 You can hire another lawyer to check the accuracy and validity of the bill;
6.4 in case of injustice, you have the right to issue summons against the lawyer;
6.5 you can also file a complaint against the lawyer with the Law Society.
An Attorney for Your Business or Personal Life
1. Whenever you take a step with legal implications (eg leases, partnerships, shareholders/members agreements/employment contracts ) – consult an attorney first. Don't sign first and then run to an attorney when something goes wrong.
2. There are many legal issues related to a business. Signing a new contract or an agreement is bound to have legal aspects associated with it. Be proactive to avoid legal issues before they backfire on you. Make sure that contract is properly drawn up. Don't wait until something goes wrong. It will be too late. The answer is that you should hire an attorney for your business. He will not only help you when you are stuck in any legal problem but also to avoid unwelcome litigation in the first place.
If it's Justified – Say Thank You !
Nothing is more appreciated by a lawyer or secretary than a thank you – if they deserve it. You will boost his morale and make him keener to serve your needs. If you want your case to stand out, follow the thank you rule.
Footnotes
1. In addition to original material from Darrolls Attorneys, this article is based on material from the following:
a) An article by Adv David Mossop QC of The Canadian Community Legal Assistance Society, the publication of which was made possible by funding from the British Columbia Law Foundation. Its material may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Putting this material on the web for commercial or non-commercial purposes is prohibited without the Community's written consent. Community Legal Assistance Society, Suite 800, 1281 West Georgia St, Vancouver, B.C., V6E 3J7; Tel: 604-685-3425; Fax: 604-685-7611; Toll Free: 1-888-685-6222; websites: http://www.clasbc.net/ & http://www2.povnet.org/clas
b) Brett J. Trout, P.C., 516 Walnut Street, Des Moines, IA 50309-4106; Phone 515.288.9263; Fax 515.280.7114; E-mail: Trout@BrettTrout.com; Website: http://www.bretttrout.com
c) articles by Sumit Bhatnagar and Parul Aggarwal on the website: www.ezinearticles.com.
2. SAMPLE INDEX OF DOCUMENTS
DATE DESCRIPTION Nr.
20 Jan Letter from Joe Smith to Jane Doe…………………………… 1
03 Feb Copy of Statement from the XXX Bank ……………………. 2
07 Mar Photograph of damaged property at 123 Anywhere Street, Cape Town 3
3.See for instance "Non-litigious fees" on the website of the Cape Law Society: http://www.capelawsoc.law.za/
Thursday, 28 June 2007
Transport for Overtime Workers
A. THE QUESTION:
Is an employer in the chemicals sector required to provide transport for those of its workers who work overtime until after 18h00.
B. RELEVANT LEGAL PROVISIONS
Basic Conditions of Employment Act 75 of 1997:
1. Section 17(2)(a) of the Act provides that, in the case of "night work" - ie work performed after 18h00 and before 06h00 the next day, transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.
2. The full text of section 17(1) & (2) reads:
"17 Night work
(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift."
3. What is the meaning of "work performed after 18h00 and before 06h00 the next day"? Although it could be argued that a day worker who works beyond 18h00
falls within the definition since he performs work after 18h00, it is unlikely that the courts will interpret the definition in this way.
4. For example, some hospitals work on a day shift from 07h00 until 19h00. A night shift works from 19h00 until 07h00. If the interpretation in the previous paragraph is applied, it would mean that the day shift would be entitled to transport because it performed work after 18h00, but the nightshift would not be so entitled because it worked until 07h00, ie not until "before 06h00". This is surely exactly the opposite from what the legislature intented.
5. Finally, the section provides that transport for night workers must be 'available' between the workplace and the employees' residence at the commencement and conclusion of their shift. No clear duty is placed on the employer to provide such transport where other transport exists.
Code of Good Practice on the Arrangement of Working Time (GN 1440 in GG 19453 of 13 November 1998)
6. Clause 4 of the Code, promulgated under the Basic Conditions of Employment Act, deals with the design and evaluation of Shift Systems. These must be sensitive to the impact on employees. The information that an employer may require on the effect of shift rosters includes the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.
7. Codes enjoy the status of more than mere 'guidelines' to employers and employees alike, in that they must be taken into account by any person interpreting or empowering the Act. Whether or not the provisions of the Code apply to the Employer in this case will depend on the circumstances.
8. Clause 10.3.2 provides that employers who "engage employees on night work" should ensure that such employees are able to obtain safe, affordable transportation between their places of residence and their workplace. However, the mere continuation of work after 18h00 by no means indicates the engaging of employees on night work.
Bargaining Council Agreements and Minister of Labour Variations
9. It is possible to vary the basic conditions of employment by way of a collective agreement concluded in a bargaining council. As far as I have been able to determine, there is no bargaining council for the chemical sector, therefore there cannot be a relevant collective agreement.
10. There does not appear to be a ministerial determination that makes any provision relevant to the current question. In any event, an employer who is subject to a ministerial determination, or who has employees who are so subject, must prominently display a copy of the notice in the workplace. If there were a relevant determination, the employer would be perfectly aware of its rights or the lack of them.
11. The Minister also has the power to vary basic conditions of employment by making a sectoral determination establishing basic conditions of employment for employees in a sector or area. So far there have been 13 sectoral determinations but none of them relate to the chemical sector.
C. CONCLUSION
The employees who raised this issue with the employer are probably referring to section 17 of the Basic Conditions of Employment. However the employees concerned cannot be regarded as "night workers" since they finish work in the late afternoons or early evenings. The provisions of the Act relating to hours of overtime worked and remuneration in that regard may well apply, but it is highly unlikely that the section can be interpreted to provide authority for the proposition that the employer needs to provide transport merely because an employee has worked his day beyond 18h00. Even then, the section does not require the employer to lay on the transport but merely provides that the employer cannot use "night workers" unless such transport is available.
Roland Darroll
Thursday, 28 June 2007
Is an employer in the chemicals sector required to provide transport for those of its workers who work overtime until after 18h00.
B. RELEVANT LEGAL PROVISIONS
Basic Conditions of Employment Act 75 of 1997:
1. Section 17(2)(a) of the Act provides that, in the case of "night work" - ie work performed after 18h00 and before 06h00 the next day, transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.
2. The full text of section 17(1) & (2) reads:
"17 Night work
(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.
(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-
(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift."
3. What is the meaning of "work performed after 18h00 and before 06h00 the next day"? Although it could be argued that a day worker who works beyond 18h00
falls within the definition since he performs work after 18h00, it is unlikely that the courts will interpret the definition in this way.
4. For example, some hospitals work on a day shift from 07h00 until 19h00. A night shift works from 19h00 until 07h00. If the interpretation in the previous paragraph is applied, it would mean that the day shift would be entitled to transport because it performed work after 18h00, but the nightshift would not be so entitled because it worked until 07h00, ie not until "before 06h00". This is surely exactly the opposite from what the legislature intented.
5. Finally, the section provides that transport for night workers must be 'available' between the workplace and the employees' residence at the commencement and conclusion of their shift. No clear duty is placed on the employer to provide such transport where other transport exists.
Code of Good Practice on the Arrangement of Working Time (GN 1440 in GG 19453 of 13 November 1998)
6. Clause 4 of the Code, promulgated under the Basic Conditions of Employment Act, deals with the design and evaluation of Shift Systems. These must be sensitive to the impact on employees. The information that an employer may require on the effect of shift rosters includes the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.
7. Codes enjoy the status of more than mere 'guidelines' to employers and employees alike, in that they must be taken into account by any person interpreting or empowering the Act. Whether or not the provisions of the Code apply to the Employer in this case will depend on the circumstances.
8. Clause 10.3.2 provides that employers who "engage employees on night work" should ensure that such employees are able to obtain safe, affordable transportation between their places of residence and their workplace. However, the mere continuation of work after 18h00 by no means indicates the engaging of employees on night work.
Bargaining Council Agreements and Minister of Labour Variations
9. It is possible to vary the basic conditions of employment by way of a collective agreement concluded in a bargaining council. As far as I have been able to determine, there is no bargaining council for the chemical sector, therefore there cannot be a relevant collective agreement.
10. There does not appear to be a ministerial determination that makes any provision relevant to the current question. In any event, an employer who is subject to a ministerial determination, or who has employees who are so subject, must prominently display a copy of the notice in the workplace. If there were a relevant determination, the employer would be perfectly aware of its rights or the lack of them.
11. The Minister also has the power to vary basic conditions of employment by making a sectoral determination establishing basic conditions of employment for employees in a sector or area. So far there have been 13 sectoral determinations but none of them relate to the chemical sector.
C. CONCLUSION
The employees who raised this issue with the employer are probably referring to section 17 of the Basic Conditions of Employment. However the employees concerned cannot be regarded as "night workers" since they finish work in the late afternoons or early evenings. The provisions of the Act relating to hours of overtime worked and remuneration in that regard may well apply, but it is highly unlikely that the section can be interpreted to provide authority for the proposition that the employer needs to provide transport merely because an employee has worked his day beyond 18h00. Even then, the section does not require the employer to lay on the transport but merely provides that the employer cannot use "night workers" unless such transport is available.
Roland Darroll
Thursday, 28 June 2007
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