B-BBEE MEANS BUSINESS

The Broad-based Black Economic Empowerment Act 53 of 2003, is said to be the most powerful piece of legislation affecting South African businesses today. The Minister of Trade and Industry, Dr Rob Davies says “the Broad-Based Economic Empowerment (B-BBEE) Commission should take action against companies that are found to not be complying with the B-BBEE requirements for transformation.”

Everyone wants change but struggles to accept it. B-BBEE need not be seen as a negative for your business but rather an investment for economic sustainability.

Like every investment, the structure needs to be unique to your B-BBEE requirements and the return needs to be worth it.

To fully embrace B-BBEE and its longevity within your business, it extends far more than just the certificate. “No economy can grow by excluding any part of its people, and an economy that is not growing cannot integrate all of its citizens in a meaningful way,” the DTI says. “As such, this strategy stresses a BEE process that is associated with growth, development and enterprise development, and not merely the redistribution of existing wealth.”

There is no standard one-size fits all approach to becoming B-BBEE compliant, there are structures, legal documents, tax implications and your value to consider. It is however imperative to find the right equity partner – NO agreement can rectify a bad relationship. A good partnership won’t happen overnight, so trying to put on a “band aid” to save your business or when there’s a big tender on line, might have catastrophic legal, financial and criminal consequences for your business.

There is no quick fix to B-BBEE, do it right from the start and your B-BBEE investment will deliver!

Holly Hughes

 

PS If you find B-BBEE to be confusing, daunting and even frightening meet with us, we can help.

SHARED RESIDENCY: DOES IT WORK FOR EVERYONE?

It has been a long accepted practice that when parties separate or divorce, any minor children that were born during the relationship or marriage will primarily reside with one parent, usually the mother, while the other parent, usually the father, has reasonable rights of contact with the child(ren). While this has been accepted practice for several years, it is no longer the only solution available to parties.

Many separating or divorcing parties are now considering whether or not to implement a Shared Residence Scheme to ensure that both parents have an equal amount of time with their child(ren) after separation or divorce.

Share residencey is an place or scheme where the primary residence and care of minor children alternates between the parents at regular intervals (eg. Every week). The time between alternating is largely dependent on the age and maturity of the children involved. Older children would likely be able to copes if their residency alternated on a weekly basis, however younger children may not be able to cope with being separated from one aren’t for such a long period of time.

For shared residency to work it requirement commitment from mutually supportive parents and generally requires the following elements to be present:

  • THE PHYSICAL ELEMENT:

    The physical location of the child(ren)’s school and both parents houses plays a large role. Ease of movement and ease of alternating residency is an integral part of achieving a working shared residency plan. (Eg. If both parents residences are similar distance from each other and the school, it is likely shared residency could physically work. On the other hands if the distances are dissimilar from each other and the school, it may indicate that shared residency wont physically work).

  • PARENTAL CIRCUMSTANCES:

    Parents must be able to effectively communicate, engage and support one another in implementing any shared residency plan. This also means that the parents should have adequate social and financial resources to implement the plan. Parents who are extremely acrimonious to one another may find that shared residency is not viable for the sole reason that it increases the need to communicate and reach understandings.

 

  • THE CHILD(REN):

    While shared residency may seem ideal to many parents, this does not automatically mean it is ideal for the child(ren) involved. The true question that must be asked to determine whether any care and contact structure will work is whether the structure is ideal for the best interests of the child(ren) involved. Certain children may find sharing their residency to be stabilising while others will find it incredibly destabilising. Ultimately each case must be decided on its own merits and in the best interests of the child.

 

It will have to be determined if shared residencey is a viable option for parents and children in each individual case and if there is any doubt, or parties cannot agree on an appropriate course to follow, a suitable professional should be engaged to assess the family and determine if shared residency is viable and in the best interests of the children concerned.

Shared residency is fast becoming a preferred option for separating or divorcing parties, especially as gender roles within relationships, society, family and employment are changing with a view to ensuring equality.

In conclusion share residency is an alternative option to the age old accepted practice which could be more beneficial not only to parents, but the entire family.

 

By

Nuno Palmeira

Surviving BEE-Transformation-ANC Kleptocracy

We are constantly bombarded with negative press regarding the state of the South African economy as well as our ability to survive in a changing environment.

Are you in the process of slowly going out of business, or have you developed a strategy that will enable your survival.

McLarens Attorneys can assist you with the Tools necessary to ensure your survival. We have a comprehensive understanding of the current BEE and empowerment structures that will ensure your survival.

If you wish to be a survivor and not a victim contact us before it is too late.

Ian McLaren

Constructive Dismissal

Constructive dismissal occurs when an Employee resigns from their Employer and claims that the resignation has occurred as a result of the Employer’s intolerable and unbearable conduct, workplace, or working conditions. The word ‘constructive’ refers to something that was created or induced and in this context a constructive dismissal means that the Employee’s resignation was coerced by the Employer by some or other reason and was not a voluntary decision by the Employee.

 

Section 186 (1) (e) of the Labour Relations Act defines a constructive dismissal as a dismissal in terms of which “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.

 

If your Employer has made continued employment intolerable or unbearable you may have a case of constructive dismissal, however to succeed with such a case an Employee will have to prove that:

 

  • The employment circumstances and situation was so intolerable and unbearable that the Employee could not be expected to continue and stay employed.

 

  • The unbearable circumstances and situation was the direct cause of the resignation and there was no reasonable alternative at the time other than to resign and leave employment.

 

  • The unbearable circumstances and situation was caused the Employer and the Employee did not do anything to contribute to the situation.

 

  • The Employer must have been in control of and aware of the unbearable circumstances and failed to remedy the situation correctly.

 

It is important to note that the onus of proof in constructive dismissal cases is extremely high and to succeed with a case of constructive dismissal an Employee will have to show and prove that he/she has exhausted all alternatives before resigning and he/she has made his/her Employer aware of the situation and has given the Employer an opportunity to remedy the situation, similar to a breach of contract which in this context would be an Employers duty not to treat the employee unfairly or subject an employee to unreasonable and unfair working conditions.

 

In the case of Mvamelo vs AMG Engineering an Employee was informed that he was to face a disciplinary hearing for theft and criminal charges would also be laid against him. The resigned and claimed constructive dismissal, however lost the case because it was found by the Arbitrator that he had resigned to avoid the disciplinary action. However, in the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd an Employee was found to have been performing his work poorly and as a result the Employer stopped paying him a salary and replaced it with a commission structure. The Employee resigned and succeeded with his constructive dismissal claim wherein it was found that the Employee could not be expected to continue employment under such intolerable circumstances.

If an employee did not first attempt to address the situation by, for example, filing a formal grievance or approaching his or her shop steward, bargaining council or the department of labour, then the employee’s resignation would be per se unreasonable and will not serve as the basis of a constructive dismissal case. In such event the employee will be held to have resigned under no undue influence and of his own accord and the Employer would be under no obligation to take this employee back.

 

It is with the above in mind that Employee’s must be careful and ensure that they raise any issues with their Employer and allow their Employer to remedy the situation before resigning and claiming constructive dismissal. It is also important that Employer’s not discipline or treat their Employees unfairly, and deal with grievances or allegations of unfair labour practice as soon as they arise.

 

Warren Sundstrom