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News Update - August 2018

- Featured article by LAWYERS-ONLINE.CO.ZA - August 2018

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Here at Lawyers Online we strive to provide our readership with frequent legal information that is both useful and relevant.

In today’s newsletter we take a look at two very interesting topics currently in the news.

  • The new clause with regards to temporary employment service (TES) providers.
  • Is a court order necessary in order to terminate municipal services?

The Constitutional Court has made a judgement regarding the roles and responsibilities of temporary employment service providers, after a three year debate.

To put this simply I will leave out the technicalities and summarise what this actually means.

In previous years it was deemed that both the temporary service provider and the client were responsible for the employee where there were disputes and other situations defined by the Labour Relations Act.

Now, the Constitutional Court has made a judgement, which is that the client will assume responsibility for employees earning R17 119.00 or less per month following three months of employment.

This doesn’t mean that the TES provider assumes automatic responsibility after three months of employment. It just means that unless otherwise stipulated in the TES/client contract the client takes responsibility for any liability defined by the LRA.

Most definitely something to be aware of and look into with the way employers prefers to make use of contractual and temporary services.

Moving on to the second part of this newsletter, knowing whether or not a court order is necessary to terminate municipal services for none-payment of municipal charges is good knowledge to have. It happens often enough and people seldom know what exactly the law says about this.

Unfortunately, the article from which the information is sourced has contradicting opinions…layers and their standpoints… However, fortunately, a conclusion is clear.

Again, in attempt to speak like the average person and not in tongues, as do highly specialised lawyers, I will simplify and generalise.

The first thing to understand is that the person or entity being deprived has a remedy in South African law based on the mandament van spolie for the immediate restoration of the thing being taken away.

Therefore, If an individual or entity is being deprived of something, which includes the supply of electricity and water, it will commonly first be considered in court to which an order must be granted authorising the taking. In this conclusion, taking something without a court order is, therefore, normally considered unlawful, unless, of course, legislation authorises it.

However, Judge Bosielo (Judges Lewis and Petse concurring) opined in para 16 that to pursue matters in which court orders are obtained to authorise termination would result in a loss of valuable time and incurrence of legal fees unnecessary. The above is paraphrased for simplicity; it is by no means a direct quote.

At para 27 he further concluded that having considered all the relevant legislation it is clear to him that no statutory instrument requires a municipality to obtain a court order to authorise the discontinuation of a municipal service. The above is paraphrased for simplicity; it is by no means a direct quote.

In conclusion, until another ruling either in SCA or a higher court, a municipality may disconnect the municipal services to a property without first having to obtain a court order authorising the discontinuation.

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