Hinrichsen Attorneys

1.          Retrenchments during COVID-19.     Due to Covid-19, an employer cannot simply skip the entire retrenchment process that is set out in terms of the Labour Relations Act which would likely lead to an unfair dismissal. Employers, during this unprecedented time, should try their utmost best to avoid retrenchment proceedings and find alternative measures to put into place in order to retain their staff. Employers must always consider alternatives to retrenchment such as demotion. Demotion can take place in the following ways: the employee’s pay or responsibilities are reduced, the employee’s subordinates are taken away, reporting roles are changed or an employee returns back to an old position if they have recently taken on a new role. A particularly important principle to remember is that an employer must always obtain the employee’s written consent to the demotion. Should your business have to shut down completely, an employer can a...

On the 23 rd of March 2020, a week after President Cyril Ramaphosa declared South Africa to be in a state of national disaster, the President announced a national lockdown for a period of 21 days to curb the spread of the COVID-19 pandemic which has the world population fearing for their lives. In imposing the national lockdown, the President announced several limitations and prohibitions, the most significant being a complete lockdown, that is, the prohibition of South Africans leaving their homes unless it is for essential purposes. Whilst a lockdown is necessary to destroy the chain of transmission of COVID-19, it is noted that the restrictions imposed by the President will limit the human rights of South Africans. There are factions that support this decision, and some that question its legality from a human rights perspective. What is a lockdown? A lockdown is defined as an emergency protocol which temporarily prohibits non-essential activities and requires people to sta...

Youth Day in South Africa is an important and inspiring day. It commemorates the Soweto uprising of the youth on the 16 th of June 1976 against the Bantu Education system. [1] A system created by the Bantu Education Act 47 of 1953, which entrenched numerous racist provisions such as enforcing racially separated educational facilities.

Living in the information age, data has commonly been considered a valuable asset. To avoid the exploitation of information at the expense of individuals the Protection of Personal Information Act 4 of 2013 (‘‘POPIA’’) was enacted. Although the POPIA was signed into law in 2013, only a few limited sections pertaining to the Act’s definitions, the Information Regulator, and the Regulations are in force. In preparation for the commencement of POPIA, it is imperative that all parties affected are aware of their rights and obligations. POPIA regulates South African institutions and the manner in which they collect, store, process, disseminate, and delete information. For purposes of POPIA, a responsible party refers to any body or person who determines the purpose of, and methods for, processing personal information and a data subject refers to the person to whom personal information relates.

Globally, women earn significantly less than their male equals.  The gender pay gap on the international scale currently weighs in at about 20%. Simply put, the term ‘‘gender pay gap’’ refers to the difference of average earnings between men and women. The term has taken centerstage globally and remains in the spotlight. In South Africa however, the topic seems peripheral to discussions this Human Rights Day. The International Labour Organization, in its Global Wage Report of 2018/19, found that South Africa has one of the highest wage inequalities among 64 other countries. A 2017 report by the World Economic Forum revealed that South African men earn an average of R 6600.00 more than women on a monthly basis. Apart from the fact that this disparity hinders economic growth, it also infringes on a woman’s human right to equality as it stems from unfair discrimination. Notwithstanding the South African legal system prohibiting discrimination, the gender pay gap remains a ch...

What is a cohabitation relationship? “Living together is an art.” – William Pickens. Cohabitation differs from a marriage in that it is a monogamous relationship between any two people that choose not to, or are not allowed to, get married but still live together as spouses. While cohabitation is often mistaken for a common law marriage, it is not recognised in South African law, regardless of how long the couple cohabitate together. Furthermore, Cohabitation does not automatically create any legal rights and duties between the applicable parties. The only way to currently regulate a cohabitation between two people is through a cohabitation agreement.

It's women's month, and with so many workplace sexual harassment scandals becoming headline news, it would be remiss not to include harassment in a discussion around women in the professional sphere. In spite of the incredible progress that has been made in the search for true gender equality, it is all to easy to become discouraged by what looks like a lack of systemic change when a new prominent harassment lawsuit appears in the news every other week. There are many inspiring examples of women pushing back against unfair treatment and structural imbalance – a particularly good example is that of Anita Hill.

A particular situation often faced by parties to a dispute is one where the underlying contract which dictates the terms on which the parties are arguing is either partly signed, or worse, not signed at all. It is important to consider the enforceability of such agreements. When considering case law, the question as to whether an unsigned contract is enforceable, may be answered as follows-  Aside from various types of legal documents where the signature of the parties is required by law, it is not required that an ordinary agreement that is documented in writing must always be signed by the contracting parties in order for it to create binding obligations between them. However, proving that the contracting parties have reached consensus in a written agreement that has not been signed places a high burden of proof on the claimant. 

Due to Hinrichsen Attorneys ever expanding presence, and in accordance with client demands, we have established a Cape Town Branch which opened in March of this year. While our new office offers all of the same services provided by us nationwide, our Cape Town branch, managed by Elke Kiehm, specialises in family law and deceased estate administration. This includes -

The Sale Agreement Buying or Selling property is the biggest financial commitment most of us will ever undertake. It is thus very important that the Estate Agent and Attorneys are chosen carefully. The Estate Agent will explain the terms of the sale agreement to the parties - who must ensure that they ask questions and understand all the terms before signing the agreement. Once the agreement of sale is signed, it is a binding contract between the Seller and Purchaser. What are Suspensive Conditions? The Sale Agreement may contain "Suspensive Conditions". These are conditions which must be fulfilled before the transfer process can begin. The most common suspensive condition is the granting of a bond to the Purchaser. A bond is a loan of money to the Purchaser by a bank to enable him to pay the purchase price of the property, on security of the property purchased. It records that if the Purchaser fails to make the bond repayments, the bank will be entitled to sell the p...

When a company wishes to appoint a non-executive (or alternatively, a non-CEO) chairperson to oversee the board of directors, it is important to be cognisant of the guidelines set out in the the King Code on Corporate Governance for South Africa (The Institute of Directors in Southern Africa) September 2009 (otherwise referred to as "King III").

When one considers the relationship between directorship and employment, various unseen issues can arise.   One of the major aspects, that few business owners consider, is that a Director is also an employee, and therefore the laws that govern such an employee will also govern the Director in his or her capacity as an employee. This creates complications that are often overlooked. The central issue revolves around one person wearing two hats, being that of director and employee. Specifically, the question is whether such a person can resign as director whilst remaining an employee of the company.

In 2012, Dale Hinrichsen made the transition from being an advocate and member of the Pretoria Society of Advocates to becoming an admitted attorney. It was thereafter that Hinrichsen Attorneys was formed and begun its expeditious climb to becoming one of the highest regarded law firms on the West Rand. While Hinrichsen Attorneys, like most small firms, started out by applying its operations to all the general aspects of law, helping individuals with personal disputes and family law as well as aiding smaller companies with contract drafting, collections and general litigation. The first branch of specificity came in the form of mining law, whereby the firm developed a strong allegiance to an impressive array of mining experts and consultants. It was hereafter that the firm began to pursue more specialised fields, which served as a catalyst to accelerate its already exponential growth. Utilising the business world’s dire need for a world class corporate law firm on ...

Could your tattoo be an infringement of the law? In our modern day and age, tattoos have  become increasingly popular and the stigma that has been associated with tattoos in the  past seems to be fading with each passing year. In most cases, tattoos are designed by the  tattoo artist based on the client’s preferences; however, there have been many cases where  tattoos are simply copied and pasted, so to speak. It is these kinds of cases that brings me to the topic of tattoos and intellectual property in South Africa.

Applicable Legislation: The Companies Act 71 of 2008 -  Sections 66 – 78 1. Definitions The Companies Act 71 of 2008 (“Act”) defines a director as a -  “member of the board of a company, as contemplated in section 66, or an alternate director of a company and includes any person occupying the position of a director or alternate director, by whatever name designated.” According to sec 66 (1) -  “The business and affairs of a company must be managed by or under the direction of its board, which has the authority to exercise all of the powers and perform any of the functions of the company, except to the extent that this Act or the company’s Memorandum of Incorporation provides otherwise.” In addition to the above definitions, a director includes an ex officio director or a prescribed officer. An ex officio director means - “a person who holds office as a director of a particular company solely as a consequence of that person holding some other o...

  A Shareholders’ Agreement is, simply put, an agreement between the shareholders of a company. This agreement is an invaluable resource for any business as it structures the relationship between the shareholders and provides the foundation for how they will interact with each other. A Shareholders’ Agreement is drafted in order to protect the interests and investments of all shareholders within the company. It further sets out the duties and rights of the shareholders and regulates the process surrounding the sale of shares by one or more of the company’s shareholders. Furthermore, unlike the Memorandum of Incorporation (“MOI”), it is a confidential agreement not filed in public office.

Emoticons or “emojis” are typically seen as playful additions to an our daily messages, but their exponentially increasing popularity has seen them included in everything from work emails to family chats, utilising emojis in your text messages has quickly developed serious consequences and many users remain ignorant to the seriousness of an otherwise playful emoticon. This has resulted in numerous American court cases where emojis have been submitted as evidence in a trial, and these types of cases will quickly reach South African shores where many contracts are seen to be concluded with a symbolic thumbs-up. While there has yet to be an emoji related case in South Africa, it is logical to draw an inference that the same principles would likely apply should our courts be asked to make such a decision.

Employers are often confronted with their employees’ lacking performance and uncertainty often arises regarding the proper way of addressing such situations. This in turn results in employees not being afforded an opportunity to bring their performance up to the required standard and employers finding themselves on the wrong side of a labour dispute. There is a vast difference in the procedure for dealing with misconduct versus that of poor performance. 

A Last Will and Testament, or simple a will, is a legal document that directs to whom your property will pass to when you die.  A trust is also a legal document created during life or as part of your Will, whereby an individual transfers ownership of property to a trust which is managed by an individual or fiduciary for the benefit of another individual. The document specifies the purpose of the trust along with the terms and conditions by which the assets are to be managed and ultimately distributed to the beneficiaries. The legal requirements for drafting a Will or a Trust are relatively simple yet one mistake can potentially invalidate the Will or Trust entirely.