Monday Morning Edition

Good morning all!

This Monday Morning Edition is sponsored by Views Boutique Hotel & Spa.

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Latest Local News

Oudtshoorn attorney behind bars for fraud, theft

Oudtshoorn – An Oudtshoorn attorney was captured by the Hawks on Friday after failing to adhere to an order to report to a correctional facility after being convicted of fraud and theft charges. 

Rescue demonstration at the Wilderness Blue Flag beach

The Eden District Municipality, together with NSRI and WESSA (Wildlife and Environmental Society of South Africa) hosted a rescue demonstration event at the Wilderness Blue Flag this weekend. 

Bejaarde vrou gehelp met lekkende dak

‘n Bejaarde vrou (64) van Blanco sê sy het die beste Kersgeskenk van haar lewe ontvang nadat die Wyksraadslid van Blanco, Rdl. Jean Säfers donasies gekry het om die dame se lekkende dak reg te maak. 

Knysna & Partners Newsletter 20 January 2017

Farm Fresh Direct Newsletter 

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Latest Local Sports News

Ice-cool Park stuns for SA Women’s Masters success

Lali Stander – CAPE TOWN, 21 January 2017 – Carrie Park from South Korea rubber-stamped her status as a future world beater when she clinched her first Sunshine Ladies Tour title in spectacular fashion in the South African Women’s Masters on Saturday. 

Sauser delivers stunning comeback to win Attakwas

Cape Town – Swiss mountain bike racing legend, Christoph Sauser, didn’t only mark his return from retirement at the Fairview Attakwas Extreme MTB Challenge on Saturday, he won the gruelling 121km race after the most incredible comeback following a mechanical delay early on.

Outeniqua Wheelchair Challenge 2017

The 2017 OCC will take place  on SATURDAY 18 FEBRUARY 2017 A wheelchair race exclusively for disabled athletes! 

Old Oaks Knysna Hockey Club

The Old Oaks Knysna Hockey Club Summer League starts on the 1st February. 

Knysna Golf Club Newsletter

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International News

Click here for the latest International News

Jammeh ‘stole’ millions in his final weeks in power, shipped out luxury cars

Banjul – Exiled Gambian ruler Yahya Jammeh stole millions of dollars in his final weeks in power, plundering the country’s state coffers and shipping luxury vehicles by cargo plane, a special adviser for the new president said on Sunday.

Mugabe ‘paying half a million dollars in yearly rentals for a villa in Dubai’

Zimbabwe’s opposition leader Morgan Tsvangirai has taken to Twitter to insist he is “very much alive” after claims on social media that he’d died of food poisoning.

Trump to keep Obama’s ‘beautiful’ letter secret

US President Donald Trump speaks, as Vice President Mike Pence watches, before the swearing in of the White House senior staff at the White House on January 22, 2017, in Washington, DC.

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National News

Click here for the latest National News

Adrian Lackay set to argue constructive dismissal against Sars

A constructive dismissal case brought by spokesperson Adrian Lackay against his former employer, the South African Revenue Service (Sars), is due to proceed today.

SABC board failed financially, legally, morally – MPs

Cape Town – The SABC’s board had a “shaky” moral compass and had failed to protect journalists from intimidation, MPs on Parliament’s SABC inquiry ad hoc committee said on Friday.

‘Nhleko favoured Ntlemeza over qualified officers for Hawks top job’

JOHANNESBURG – Reports have emerged that Police Minister Nathi Nhleko allegedly ignored a short list of five highly qualified officers to appoint Berning Ntlemeza as head of the Hawks.

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Business News

Click here for the latest Business News

#WEF looks to China for answers January 22, 2017

Whilst Trump will be busy building a wall, China is building alliances with more countries across the world, writes David Monyae.

Eskom proposes take-over of defaulting municipalities

Eskom is hoping to get itself out of the municipal debt trap by taking over electricity metering and revenue collection in defaulting municipalities.

Independent Power Producers, Eskom on collision course January 21, 2017

A legal showdown is looming between Eskom and a group of local renewable energy companies.

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Sports News

Click here for the latest Sports News

Robin Peterson scouts for future cricketing heroes

Robin Peterson said, “Having played in the Coca-Cola® KhayaMajola Week myself, I can testify that this tournament is a significant stepping stone in the career of a young cricketer.

Batsmen struggled to adapt – Behardien January 23, 2017

Proteas captain, Farhaan Behardien, admits that the batsmen struggled to adapt to the slow and spinning conditions in their three-wicket loss to Sri Lanka.

Rassie’s camp denies Bok coaching rumours January 23, 2017

Rassie Erasmus’ management team has brushed off rumours linking him with a return to South Africa to take over as Springbok coach.

WRAP: English Premiership January 23, 2017

A comprehensive wrap of all the collated matches, scores and match reports from this weekend’s English Premiership matches.

Women’s wrap, Day 7 – Jan 22 January 22, 2017

World No 1 Angelique Kerber was knocked out of the Australian Open on Sunday in a stunning upset by a supremely confident Coco Vandeweghe, as yet another big seed was sent packing early.

Men’s wrap, Day 7 – Jan 22 January 22, 2017

World No 1 Andy Murray found his stunning defeat hard to swallow after 50th-ranked Mischa Zverev extended his Australian Open agony in the fourth round on Sunday.

Banyana fall short in Reunion January 22, 2017

Banyana Banyana gave it all they had, but were ultimately outlasted 2-0 by France in an international friendly in Reunion on Sunday night.

Dutch dispatch SA hockey men January 22, 2017

The SA men’s hockey team fought bravely at a windy Hartleyvale, but ultimately came unstuck against a more experienced Netherlands side.

Fit-again AB blasts 134 not out January 22, 2017

Star Proteas batsman AB de Villiers made a successful return from an elbow injury as he blasted 134 unbeaten for Northerns against Easterns.

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Press Releases

The coastal property markets in South Africa you should be investing in

Despite an overall modest slowdown in house price growth in South Africa’s residential property market, with house price inflation averaging at 4.88% in 2016, the three coastal metropolitan markets of Cape Town, Nelson Mandela Bay and Durban continue to outperform the interior metro markets.

South African Entrepreneurs Named as Semifinalists in Mozilla’s Equal Rating Innovation Challenge

Mountain View and Cape Town, 18th January 2017: Mozilla, the non-profit organisation behind the open source browser Firefox, is pleased to announce the selection of the five semifinalists for its global Equal Rating Innovation Challenge – a global initiative to help provide access to the open Internet to those still living without it.

Eerste amptelike Gesig van Rooibos aangekondig

Die Nuwe Graskoue Trappers  – eie aan die streek Die eerste Nasionale Rooibosdag is op 16 Januarie op Clanwilliam gehou, en wat ’n reuse-sukses was dit nie!

Nomad Bistro & Bar launches ‘Live at Nomad’ Thursdays

Every Thursday, Cape Town’s latest addition to the trendy gastropub scene, Nomad Bistro & Bar will host the Live at Nomad event which will feature live entertainment from established as well as upcoming artists and bands who will play to the after-work crowd from 7pm.

Kaleidoskoop maak nuwe album se naam bekend!

Die talentvolle akoestiese musiekgroep, Kaleidoskoop, het dit reggekry om die afgelope tien jaar die harte van musiekliefhebbers regoor die land te verower.

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Regular Columns & Opinion Pieces

Employee or Contractor? Courts will give effect to Contractual Terms

In the recent matter of Vermooten v Department of Public Enterprises & Others (JA91/2015) [2016] ZALAC 63 (14 December 2016) the Labour Appeal Court affirmed that in the absence of overriding policy considerations, neither a tribunal such as the CCMA nor a Court may ignore the terms of a contract.

Businesses should start preparing for POPI

20 January 2017: The Protection of Personal Information Act (PoPI) may not have been made effective yet, but businesses need to make compliance one of their top priorities for 2017.

High-end branded items from Mercedes-Benz’s new online store

In a fast moving and trendsetting environment, Mercedes-Benz Accessories opened their online store hosting a wealth of gift ideas for their ever-growing fan base. 

Rare Chev LUV in Kotze’s collection of tough-as-nails Isuzu KB bakkies

Some things you just can’t kill – and that includes your average Isuzu KB bakkie.

Book Review: For Friends and Family

BOKAMOSO | SA needs a foreign policy based on facts and principle, not friends and ideology

Happy 2017! I hope you have all emerged from the festive season feeling relaxed, renewed and ready to tackle the challenges that lie ahead.

Cartoon – Donald Trump Inauguration Speech

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Until next time…

Bruce

Monday Morning Edition

Employee or Contractor? Courts will give effect to Contractual Terms

In the recent matter of Vermooten v Department of Public Enterprises & Others (JA91/2015) [2016] ZALAC 63 (14 December 2016) the Labour Appeal Court affirmed that in the absence of overriding policy considerations, neither a tribunal such as the CCMA nor a Court may ignore the terms of a contract.

By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

In 2006 Dr Vermooten applied for the position of Director: Aviation following an advertisement by the Department of Public Enterprises. During the interview, Dr Vermooten indicated that he could not accept the remuneration that was offered. Due to the Personnel and Salary System, which prescribes rates of remuneration in the public service, the Department was not able to increase the salary offered to Dr Vermooten. Nevertheless, at the interview representatives of the Department indicated that a solution could be found to the problem. Dr Vermooten agreed and suggested that his appointment could be approached as a ‘specialist function’ which would permit him to operate outside the formal structure, similar to other specialists engaged by the Department.

The Department subsequently offered Dr Vermooten a contract as a Specialist Aviation Consultant for a period of 12 months with effect from 9 October 2006. He was advised that this was the only way that the Department could pay Dr Vermooten’s desired salary. As a consequence, Dr Vermooten would be required to submit monthly invoices to the Department, which invoices would then be paid by the Department. Dr Vermooten accepted this contract.

When the first contract expired, he was offered a second contract on the same basis which he accepted.  The agreement was subsequently amended and extended until 31 March 2011. During March 2011 Dr Vermooten was informed that the contract would not be extended any further. Dr Vermooten subsequently referred a dispute to the Bargaining Council alleging that he had been dismissed unfairly.

At the arbitration the Department raised a legal point and made submissions to the effect that Dr Vermooten was not an ‘employee’ as defined in terms of the Labour Relations Act 66 of 1995, as amended (“the LRA”) but led no evidence to support these contentions. After considering evidence led by Dr Vermooten, the arbitrator found in favour of Dr Vermooten, but this was reversed on review by the Labour Court.

Aggrieved by this, Dr Vermooten then appealed to the Labour Appeal Court. The Court considered the evidence led at the arbitration. Dr Vermooten stated that when a consultant is appointed by the Department, a tender process is followed and a bid committee adjudicates the tender before awarding it. This did not happen in respect of his appointment. Dr Vermooten stated that he reported to the Deputy Director-General of the Department of Public Enterprises and that his reports were supervised and edited by him. He was also provided with a 3G card, a cellphone and a computer. Files and staff were allocated to him and he was also required to apply for annual leave. PAYE was also deducted from the amounts paid to him at 25%, but he was not provided with medical aid or pension fund benefits.

Dr Vermooten argued that the Court should pay regard to the substance of the relationship of the parties and not the form of the contract regulating that relationship. While the Court agreed that this was the correct approach, it found that there were two ways in which the Department wished to engage Dr Vermooten’s services, namely as an employee on a contract basis or as a consultant on a ‘different contractual basis’.

The Court found that Dr Vermooten had declined the first option because he was unprepared to accept the proposed remuneration. Dr Vermooten was in a good bargaining position and was able to negotiate an arrangement which permitted him to receive more money. The Court found that although the arrangement was for purposes of avoiding the limitations prescribed by the Personnel and Salary System, this was not an illegal purpose. The Court accordingly found that the parties had deliberately and consciously elected to structure their relationship as one other than an employment relationship. In an important passage, the Court held as follows:-

“[26]     The consultancy agreement was not a sham. Therefore, in the absence of any overriding policy considerations, neither a tribunal nor a court may ignore its terms. Where the parties are in a relatively equal bargaining position and consciously elect one contract or relationship over another, the legal effect should be given to their choice… The appellant seeks to be defined as an employee and so, it seems to me, to achieve what could not be achieved when negotiations began ie to be the Director: Aviation at a remuneration level exceeding double the prescribed remuneration and with the inclusion of all the benefits which were previously excluded by reason of the consultancy agreement. In other words, he wishes to become part of an organisation which could not and still cannot, accommodate him at his desired remuneration level.”

Dr Vermooten’s appeal was accordingly dismissed with costs.

Employers often engage in contractual arrangements which do not precisely define the true nature of the relationship between the parties, leading to disputes as to whether the person is an employee or an independent contractor. It is particularly important for both parties to understand the nature of their relationship and this should be clearly dealt with in the contract which regulates the relationship, as subsequent conduct could create unnecessary confusion and create expectations on the part of both parties.

For more information please contact Neil Coetzer at ncoetzer@chlegal.co.za or (011) 783 8711 / (011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys http://ift.tt/1L2bSKH

Employee or Contractor? Courts will give effect to Contractual Terms

Employee or Contractor? Courts will give effect to Contractual Terms

In the recent matter of Vermooten v Department of Public Enterprises & Others (JA91/2015) [2016] ZALAC 63 (14 December 2016) the Labour Appeal Court affirmed that in the absence of overriding policy considerations, neither a tribunal such as the CCMA nor a Court may ignore the terms of a contract.

By Neil Coetzer, Partner, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

In 2006 Dr Vermooten applied for the position of Director: Aviation following an advertisement by the Department of Public Enterprises. During the interview, Dr Vermooten indicated that he could not accept the remuneration that was offered. Due to the Personnel and Salary System, which prescribes rates of remuneration in the public service, the Department was not able to increase the salary offered to Dr Vermooten. Nevertheless, at the interview representatives of the Department indicated that a solution could be found to the problem. Dr Vermooten agreed and suggested that his appointment could be approached as a ‘specialist function’ which would permit him to operate outside the formal structure, similar to other specialists engaged by the Department.

The Department subsequently offered Dr Vermooten a contract as a Specialist Aviation Consultant for a period of 12 months with effect from 9 October 2006. He was advised that this was the only way that the Department could pay Dr Vermooten’s desired salary. As a consequence, Dr Vermooten would be required to submit monthly invoices to the Department, which invoices would then be paid by the Department. Dr Vermooten accepted this contract.

When the first contract expired, he was offered a second contract on the same basis which he accepted.  The agreement was subsequently amended and extended until 31 March 2011. During March 2011 Dr Vermooten was informed that the contract would not be extended any further. Dr Vermooten subsequently referred a dispute to the Bargaining Council alleging that he had been dismissed unfairly.

At the arbitration the Department raised a legal point and made submissions to the effect that Dr Vermooten was not an ‘employee’ as defined in terms of the Labour Relations Act 66 of 1995, as amended (“the LRA”) but led no evidence to support these contentions. After considering evidence led by Dr Vermooten, the arbitrator found in favour of Dr Vermooten, but this was reversed on review by the Labour Court.

Aggrieved by this, Dr Vermooten then appealed to the Labour Appeal Court. The Court considered the evidence led at the arbitration. Dr Vermooten stated that when a consultant is appointed by the Department, a tender process is followed and a bid committee adjudicates the tender before awarding it. This did not happen in respect of his appointment. Dr Vermooten stated that he reported to the Deputy Director-General of the Department of Public Enterprises and that his reports were supervised and edited by him. He was also provided with a 3G card, a cellphone and a computer. Files and staff were allocated to him and he was also required to apply for annual leave. PAYE was also deducted from the amounts paid to him at 25%, but he was not provided with medical aid or pension fund benefits.

Dr Vermooten argued that the Court should pay regard to the substance of the relationship of the parties and not the form of the contract regulating that relationship. While the Court agreed that this was the correct approach, it found that there were two ways in which the Department wished to engage Dr Vermooten’s services, namely as an employee on a contract basis or as a consultant on a ‘different contractual basis’.

The Court found that Dr Vermooten had declined the first option because he was unprepared to accept the proposed remuneration. Dr Vermooten was in a good bargaining position and was able to negotiate an arrangement which permitted him to receive more money. The Court found that although the arrangement was for purposes of avoiding the limitations prescribed by the Personnel and Salary System, this was not an illegal purpose. The Court accordingly found that the parties had deliberately and consciously elected to structure their relationship as one other than an employment relationship. In an important passage, the Court held as follows:-

“[26]     The consultancy agreement was not a sham. Therefore, in the absence of any overriding policy considerations, neither a tribunal nor a court may ignore its terms. Where the parties are in a relatively equal bargaining position and consciously elect one contract or relationship over another, the legal effect should be given to their choice… The appellant seeks to be defined as an employee and so, it seems to me, to achieve what could not be achieved when negotiations began ie to be the Director: Aviation at a remuneration level exceeding double the prescribed remuneration and with the inclusion of all the benefits which were previously excluded by reason of the consultancy agreement. In other words, he wishes to become part of an organisation which could not and still cannot, accommodate him at his desired remuneration level.”

Dr Vermooten’s appeal was accordingly dismissed with costs.

Employers often engage in contractual arrangements which do not precisely define the true nature of the relationship between the parties, leading to disputes as to whether the person is an employee or an independent contractor. It is particularly important for both parties to understand the nature of their relationship and this should be clearly dealt with in the contract which regulates the relationship, as subsequent conduct could create unnecessary confusion and create expectations on the part of both parties.

For more information please contact Neil Coetzer at ncoetzer@chlegal.co.za or (011) 783 8711 / (011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys http://ift.tt/1L2bSKH

Employee or Contractor? Courts will give effect to Contractual Terms