All the new minimum wages in SA – with big increases for domestic workers

All the new minimum wages in SA – with big increases for domestic workers

  • The new national minimum wage is R21.69 per hour, an increase of 4.5%. 
  • Farm workers’ minimum wage is now equal to the national minimum wage for the first time. 
  • The minimum wage for domestic workers is still below the national wage, but has been hiked by 23% this year – and should be on par by 2022.

The government has gazetted the new national minimum wage: R21.69 per hour. This is an increase of 4.5% from last year.

Last year, the National Minimum Wage Commission recommended that the minimum wage be increased by inflation (currently around 3%) plus 1.5%.

It noted that inflation for poorer households is currently significantly higher than for higher-income earners, due to the relatively sharp increase in food prices. Because the households of minimum-wage earners spend more of their income on food, this hurts them more than higher earners.

Also, the minimum wage is still below the upper-bound poverty line (of R1,268 per person per month).

Domestic workers

The minimum wages of domestic workers increased from R15.57 per hour to R19.09, a hike of almost 23%. The commission wants the minimum wage for domestic workers – who still, even after the latest increase, earn 12% less than other minimum wage workers – to be exactly the same as the national wage by next year.

Apart from house cleaning work, domestic workers also include gardeners, drivers and people who look after children, the aged, sick, frail or disabled in a private household (but not on a farm).

Farm workers

From this year, the minimum wage for farm workers is now equal to the national minimum wage, after earning 10% less in the past year. This is thanks to a 16% bump of R18.68 to R21.69 this year.

In a note, the employment law service Labourwise reminded employers that the national minimum wage excludes allowances that are paid to enable employees to work (such as transport and equipment), or payment in kind (such as board or accommodation), as well as bonuses, tips or food.

“So, for example, one cannot argue that you pay an employee less than the minimum wage because you contribute to their uniform or provide them with meals.”

Source: Business Insider

 

A PERSPECTIVE ON BENEFICIARIES’ RIGHTS

A PERSPECTIVE ON BENEFICIARIES’ RIGHTS

This is a useful article by Phia van der Spuy setting out a simple explanation of beneficiaries rights trusts.

Many trustees believe that beneficiaries have no rights, especially if they are contingent beneficiaries in a discretionary trust.

Personal right against trustees for compliance with their duties
In the Gross v Pentz case of 1996 it was made clear that although contingent beneficiaries have no vested rights in the trust property, such beneficiaries still have vested interests in the proper administration of the trust. Such a right is termed a personal right of action against trustees for the performance of an obligation. In other words, the trustees must either do or refrain from doing something. A personal right is a legal right against another person (a right in personam), usually created through a contract. It ensures that the trustees perform their duties in accordance with the trust instrument. This places a huge burden on trustees, as they can be held personally liable if they do not perform their duties as prescribed by law.

Personal right in trust income or capital as stipulated in trust instrument (vesting trust)
A personal right is acquired by a beneficiary who has a vested right – a right to claim income or capital from the trustees in terms of the provisions of the trust instrument, but subject to rights attached to such vested right. It is said that such a beneficiary has a right in the assets of the trust and may be labelled an income beneficiary and/or capital beneficiary. Such a trust is also labelled an ownership trust since the trustees remain the non-beneficial owners of the trust assets, even though they will have no discretion in terms of which beneficiaries (with such vested rights) should receive distributions. A beneficiary with a vested right will have a personal right of action against the trustees to ensure that the trustees perform their duties in accordance with the trust instrument and a personal right against the trustees to claim transfer of trust income or capital, depending on what rights the vested right confers. In some trusts, beneficiaries may have a combination of rights, such as vested rights to trust income and/or capital and discretionary rights to trust capital. Any vested rights will be exposed to creditors, but subject to the terms of the trust instrument – i.e. creditors will never obtain more favourable rights than the beneficiary. These vested rights will be included in the estate of the deceased beneficiary and attract Estate Duty.

Personal right in trust capital, income and capital gains as vested by trustees in discretionary beneficiary
A beneficiary of a discretionary trust (which is an ownership trust since the trustees remain the non-beneficial owners of the trust assets) only has a discretionary or contingent right (a hope to receive something) until the trustees have exercised their discretion in favour of such beneficiary upon which such distribution vests in the beneficiary. Discretionary beneficiaries, therefore, do not have real rights (ownership) in the trust property because the trust assets belong to the trustees in their representative capacity (CIR v MacNeillies’ Estate case of 1961) on behalf of all beneficiaries.
Depending on the terms of the trust instrument, trustees can, at their discretion, vest income, capital gains and/or capital of the trust in such beneficiary, subject to certain requirements, such as payment only on a future date or when a certain event takes place. The beneficiary with such a vested right has a personal right to claim an asset and/or income and/or capital gain from the trustees in terms of the provisions of the trust instrument, but subject to rights attached to such vested right. Such distributions will also be exposed to creditors and will fall within the estate of the beneficiary.

Real rights to assets (bewind trust)
In the context of trusts, a real right (right in rem) to an asset is, for example, a right of ownership. A real right is an absolute right that can be enforced against anyone, and not just against one person. A real right, therefore, establishes a legal relationship between a thing (property) and a person when that person owns an asset outright.
The beneficiary acquires ownership of the asset upon the creation of the trust, and control and administration of the trust is transferred to the trustees to protect or care for the beneficiary who normally has a legal limitation (such as being under the age of eighteen or being of unsound mind) or some other limitation (for example, they are mentally or physically challenged) (Section 1(b) of the Trust Property Control Act). Here, it is implied that the property should be registered in the names of the beneficiaries and not in the names of the trustees.

~ Written by Phia van der Spuy ~

 

 

When a Trustee can and cannot be removed

When a Trustee can and cannot be removed

Herewith an informative article written by Phia van der Spuy:

Trustees are legally vested with the administration of the trust’s assets. They must manage the assets and liabilities of the trust in terms of the provisions of the trust instrument and the law, and not necessarily in a manner that pleases the beneficiaries.

Disharmony may exist in the administration of a trust – this is in itself not sufficient for the removal of a trustee. The Court held in the Gowar v Gowar case of 2016 that the “overriding question is always whether or not the conduct of the trustee imperils the trust property or its proper administration. Consequently, mere friction or enmity between the trustee and the beneficiaries will not in itself be adequate reason for the removal of the trustee from office… Nor, in my view, would mere conflict amongst trustees themselves be a sufficient reason for the removal of a trustee at the suit of another”.

This case made it clear that it is not that easy to remove a trustee and that the motivation should be sound for doing so. The Court has to be certain that the removal of a trustee will be in the interest of the trust and the beneficiaries. A beneficiary’s unhappiness with a trustee, and even inefficiency of the trustee, is not enough for a court to remove a trustee. More is required.

Removal in terms of trust instrument
Trust instruments usually stipulate specific criteria for the removal of trustees which may include the removal of a trustee as approved by the majority of trustees, or beneficiaries. Such a clause does not seem to give the protection for which many people hope. Even though a trust instrument may contain a clause that empowers trustees, or beneficiaries to remove another trustee by majority vote, it is not sufficient to enforce this clause without reason (Ritom Trust versus van Niekerk case of 2018).

Trustees are required to act reasonably and exercise reasonable care when removing another trustee. Removal without good cause is against public policy (as found in the South African Constitution in terms of the Minister of Education v Syfrets Trust Ltd case of 2006) and the principles of ubuntu, reasonableness and fairness. If a trustee is requested by others to resign, they shall vacate their office only in the event of a written letter of acceptance.

Removal by the Master
The Master of the High Court can play a role in ensuring that the trustees conduct themselves in a proper way in accordance with both the law and the trust instrument. In certain instances, the Master may even remove a trustee from office. The Master does have the power to remove a trustee in terms of Section 20(2) of the Trust Property Control Act if a trustee does not comply with a lawful request of the Master of the High Court, such as a request to provide accounts and documents for the trust in terms of Section 16 of the Act. Note that in terms of Section 23 of the Act, anybody who feels aggrieved by the removal of a trustee by the Master may apply to the Court for relief.

Removal by the Court
Section 20 of the Act allows the Master, and any person having an interest in the trust property, to apply to the Court for a trustee to be removed. In the Burger v Ismail case of 2013, the Court held that it should be cautious about removing a trustee and should consider alternative measures first.

The Court will remove a trustee if it is satisfied that such removal will be in the interests of the trust and its beneficiaries. Apart from the Master, only a beneficiary – and not a person other than the beneficiary who has “sufficient interest in the matter” – is permitted to apply to Court for the removal of a trustee (Ras v Van der Meulen case of 2011). A trustee cannot be the applicant to remove a co-trustee since a trustee has no interest in trust property.

The Court is not bound by the requirements of Section 20(1) but has inherent power to remove a trustee from office at common law. In terms of our common law, a trustee may be removed where the non-removal of a trustee would prevent the trust from being properly administered, or where the continuance of the trustee in office would be detrimental to the welfare of the beneficiaries as a whole, not to one disgruntled beneficiary. Neither dishonesty nor misconduct is required for the removal of a trustee – the only requirement is that their removal is in the interests of the trust and its beneficiaries.

The Court’s power to remove a trustee must be exercised with caution. It should always consider whether the trustee’s conduct endangered the trust property or its proper administration. Conflict between the trustees and/or beneficiaries is not sufficient reason for a court to remove a trustee. The overriding factor is the welfare of the beneficiaries and the proper administration of the trust and the trust property. The removal of a trustee will only be ordered if the trustee’s continuance in office will prevent the trust from being properly administered, or be detrimental to the welfare of the beneficiaries. The Court may remove a trustee who places their own interests above those of the trust beneficiaries (Mofokeng v Master of the North Gauteng High Court case of 2013).

In the Tijmstra v Blunt-Mackenzie case of 2002, it was held that
a trustee may be removed from office, even if they acted bona fide (without an intention to deceive). It was argued that a trustee’s office should be terminated by the Court if they allowed maladministration of the trust by the other trustees, without acting on it. It further argued that mala fides (acting in bad faith) or even misconduct are not necessary requirements for the removal of a trustee. This view of the Court is a strong warning to trustees, who should be aware of this view, and the possible consequences for turning a blind eye.

 

 

Master’s Offices bottleneck creating difficulties for attorneys and their clients

Master’s Offices bottleneck creating difficulties for attorneys and their clients

SA’s legal practitioners, already disgruntled with alleged corruption at the country’s 15 Master’s Offices, say the disarray in winding up deceased estates – worsened by Covid-19 deaths – risks taking them out of the R30bn sector. Business Day says the functioning of the offices has been a contentious issue with concerns raised especially over the huge backlogs. The pandemic has worsened the situation as Covid-19 deaths add to the bottleneck of deceased estates.

Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa, a non-profit organisation representing fiduciary practitioners, said that while turnaround times and service levels ‘are under strain in most Master’s Offices’, this did not apply to all as some offices cope better with their workload than others. ‘The vast majority of complaints from the major centres in the last three years relate to the Master’s Offices in Johannesburg, Pretoria and Cape Town, while no complaints have been received about the offices in Bloemfontein and Kimberley.’

A G Jenkins Attorneys have a roster of it’s Candidate Attorneys who visit the Pietermaritzburg Master’s Office two or three times a week to personally follow up on matters requiring attention by the Master’s Office, in order to try and expedite matters, and so we have luckily been able to manage the situation as best as possible in the current situation.

Euthanasia applicants exaggerating illnesses, claims HPCSA

Euthanasia applicants exaggerating illnesses, claims HPCSA

The Health Professions Council (HPCSA) is opposing the latest bid to legalise euthanasia, claiming the applicants are exaggerating their illnesses. According to Rapport, the application by palliative care doctor Sue Walter (47) and her patient Dieter Harck (71) was set to be heard in the Gauteng High Court (Johannesburg) this week, but will now in all probability be heard next week.

As reported in Legalbrief Today, Walter was diagnosed in February 2017 with multiple myeloma and Harck was diagnosed in 2013 with motor neuron disease. Both say they are suffering from ‘torturing symptoms’ and want the law to be developed to allow for physician-assisted suicide (PAS) and physician-assisted euthanasia (PAE). According to Rapport, the HPCSA says in its opposing papers that multiple myeloma and motor neuron disease ‘may’ develop into a terminal phase, but neither of the applicants has reached that phase.

The HPCSA is also of the view that the terminal phase of an illness cannot be viewed as a burden or liability. ‘Suicide is not a right or benefit of the law within the meaning of section 9 of the Constitution,’ the HPCSA argues, and the ‘killing of a person is not a health service’. The statutory body says it will act against any doctor who assists a patient to end his or her life. A prohibition of PAS and PAE is necessary to protect the rights to equality, dignity, life and physical integrity of those who are old, terminally ill, or physically or mentally disabled, it argues.

Source: LegalBrief

ANCIENT GENDER-BASED INHERITANCE LAW OVERRULED

ANCIENT GENDER-BASED INHERITANCE LAW OVERRULED

An out-and-out disinheritance clause in a will executed more than 100 years ago that excluded female lineal descendants has been overruled by the Constitutional Court, says a Cape Times report. It held that the Equality Act was now the benchmark to evaluate the conduct of a private person which had an impact on another person’s right to equality.

In November 1902, Karel Johannes Cornelius de Jager and his wife, Catherine Dorothea de Jager, signed a will in which they gave certain farms to their children, subject to the condition that the farms would pass from their children to male descendants only until the third generation. In 1957 the properties were inherited subject to that condition. These heirs included Kalvyn de Jager and his two brothers, Cornelius and John. John later died without a male child and his share in the farms was divided equally between Kalvyn and Cornelius. When Cornelius died, his half share in the farms passed to his sons, Albertus, Frederick and Arnoldus. However, when Kalvyn died in 2015, he did not have male children – only five daughters. In terms of clause seven of the testator’s will, the half share of Kalvyn de Jager could not pass to his daughters although he had left it to them in his will.

The sisters initially approached the High Court, which dismissed their application and then the SCA, which did the same. The Cape Times report notes they took the matter to the Constitutional Court, which upheld their appeal and set aside the orders granted by the High Court and SCA. ‘The provisions of the preamble to the Equality Act make its nature and intended purpose clear. The consolidation of democracy requires the eradication of inequalities, especially those that are systemic in nature and which were generated in SA’s history by colonialism, apartheid and patriarchy,’

Acting Justice Margaret Victor said. ‘Inheritance laws sustain and legitimise the unequal distribution of wealth in societies thus enabling a handful of powerful families to remain economically privileged while the rest remain systematically deprived. In my view, this system entrenches inherited wealth along the male line. In applying this critique to the facts in this case our common law principle of freedom of testation is continuing to entrench a skewed gender bias in favour of men.’

Source: LegalBrief