Home /Our Insights /Home /Home
BOOK CONSULTATION SUBSCRIBE

Our Insights

GO
GO
Filter: Lockdown
Wedding cancelled due to Covid-19: can I get my money back?

19 January 2021,  Jaco Van den Berg

Since Covid-19 struck, it is no longer unusual to hear of engaged couples whose wedding date had been fixed, whose... invites had gone out long before and who had paid for everything already including the total venue costs - only for unexpected Covid-19 regulations to suddenly be implemented squashing all their romantic plans in one, fell swoop. The big question is, now that the wedding had to be cancelled, can the couple get their money back?Yet again with the recent amended Covid-19 regulations declared at the end of December 2020, many weddings had to be postponed or cancelled on short notice. It is important to know your rights if you already paid the wedding service providers and the wedding is now cancelled due to the change in regulations.The Regulations issued in terms of the Disaster Management Act, defines a gathering as follows:‘gathering’ means any assembly, concourse or procession in or on—(a) any public road, as defined in the National Road Traffic Act, or(b) any other building, place or premises, including wholly or partly in the open air, and including, but not limited to, any premises or place used for any sporting, entertainment, funeral, recreational, religious, or cultural purposes; but excludes a workplace and a place of residence for those persons ordinarily residing at the residence.The amended level 3 lockdown regulations that are now in force, prohibits most gatherings or social gatherings, including weddings. Many contracts with service providers, like the wedding venue, will contain a force majeure clause. Force majeure refers to an event or occurrence, which renders contractual performance impossible. The term is synonymous with the term vis maior.Force majeure clauses allow a party to a contract to escape the normal consequences of non-performance or late performance of their obligations in terms of the contract, because of an unforeseeable or unavoidable event. This can include acts of God, acts of government, natural disasters, epidemics, pandemics, terrorism or even war. The clause will allow a party to suspend its obligation in terms of the agreement for the duration of the force majeure event.If, however, there is no force majeure clause in the contract with a wedding service provider, and the service provider refuses to refund the money paid when a wedding is cancelled due to the new regulations, the other party has a possible claim against the service provider based on the legal remedy known as unjustified enrichment. The term "unjustified enrichment" is used to describe the situation which occurs when one party is enriched and the other party correspondingly impoverished, while the enrichment is at the expense of the impoverished party and unjustified, that is, without there being a legal ground for the retention of the enrichment by the enriched party. From the fact of such unjustified enrichment an obligation arises by operation of law in terms of which the enriched party has, in specified circumstances, a duty to restore the enrichment to the impoverished party up to the level of the latter's impoverishment.This means if you paid a wedding service provider and the wedding could not proceed due to the force majeure event (in this case, Covid-19), the wedding service provider might have been enriched at your expense, and you might well have a claim based on unjustified enrichment against them.Most probably the claim will be against the venue provider, band or other service providers who has not performed their obligation prior to the cancelation of the wedding. Unfortunately, if the service provider already performed, such as delivering the wedding cake, no enrichment claim will be possible.Each matter will have to be judged on the relevant facts and it is best to contact an attorney to advise you on a possible claim.

READ MORE
2684
Blog
Leave and work from home in the time of Covid-19

08 October 2020

South Africa’s move to Alert Level 1 came to the aid of most employees who were compelled to stay at... home due to the lockdown regulations promulgated to reduce the spread of Covid-19.  However, despite the easing of the lockdown restrictions,  there are employees who may still be unable to return to work due to their higher risk of complications or death should they contract Covid-19. The nature of the work performed by these employees may further prevent or limit them from working remotely. In instances where an employee is unable to return to work due to an existing medical condition and their high risk of exposure to Covid-19 in the workplace cannot be limited, the employer may place such an employee on annual leave. From the inception of lockdown, the Department of Employment and Labour encouraged employers to allow and/or enable their employees to work from home and to continue paying their employees without placing them on annual leave, subject to the condition that the employer is able to do so. An employer who offers his/her employees the minimum annual leave days as prescribed in the Basic Condition of Employment Act (“BCEA”) may not require or permit such employees to tender their services to the employer during days on which they are on annual leave. An employee may therefore be placed on annual leave under circumstances where they are unable to return to work and are further unable to work from home due to the nature of the work performed by that employee. Employees who are able to work remotely must not be treated less favourably than those who are able to return to the workplace and must be considered as if they are tendering their services physically in the premises of the employer. Employers may also consider placing employees who are unable to return to work on special leave if their annual leave days have been exhausted. However, the period of special leave cannot be limitless and employees must be aware of the fact that this may, in future and subject to the period of their absence from the workplace, result in retrenchments and/or dismissal due to incapacity. It is important to note that the BCEA currently makes no provision for the handling of annual leave during a national state of disaster or periods of extensive lockdowns which prevent employees from reporting for work. Therefore, employers are advised to implement changes and/or decisions taking into consideration our existing employment law legislation and through consultations with their employees.

READ MORE
1686
Blog
Business interruption insurance and Covid-19

11 September 2020,  Eldon Ward

I’m a restauranteur and have suffered massive losses during the Covid-19 lockdown. I was just wondering whether there are any... insurance options I may have or could look into to make up for some of the losses in my business due to Covid-19?

READ MORE
1610
Article
Validity of lock-in provisions in BEE transactions

11 September 2020,  Johnny Davis

A few years ago, our company entered into a BEE transaction with BEE partners to address our ownership. In the... transaction documents, restrictions were imposed on the BEE partners that they could not sell or encumber their shares for a period of at least ten years. These lock-in provisions were a necessary part of the financing and overall transaction. With the current difficult economic times, our partners want to sell a portion of their shares and are disputing the validity of our lock-in provisions. Are lock-in provisions legally enforceable?

READ MORE
1475
Article

11 September 2020,  Cleopatra Mukhari

READ MORE
1443
Article
Lockdown Level 2 not letting employers off the hook

03 September 2020,  Tata Mokwayi

On 15 August 2020, President Cyril Ramaphosa, announced the country’s progress in the national effort to contain the COVID-19 pandemic... after five months since he declared a national state of disaster. The announcement entailed that the entire country would be placed on Alert Level 2 with effect from midnight on Monday, 17th August 2020. All of the restrictions on the resumption of economic activity across most industries have been removed. The new normal is the new reality. In light hereof the need to adhere to COVID-19 protocols has become increasingly important. The following points are important for employers in order to navigate through Alert Level 2: The wearing of a face mask remains mandatory for all employees. Businesses may operate except for specific economic exclusions such as night clubs. All persons who are able to work from home must do so. Employees are permitted to perform any type of work outside their home, and to travel to and from work save for specific economic exclusions. The national curfew shall remain in place between 22:00 PM to 4:00 AM. Employees that will be required to work post 22:00 PM, must be issued with permits. Vulnerable employees such as employees over the age of 60 years or those with co-morbidities must be accommodated to facilitate their return to work or to continue working from home. Vulnerable employees must be afforded an opportunity to provide reasons as to why they are not in a position to return to the workplace. Construction, manufacturing and financial services firms with more than 500 employees must adhere to the appropriate sector or workplace arrangements or compacts to address: The provision of transport; Daily screening of employees for symptoms of COVID-19; and Submission of data collected during the screening and testing process to the Director-General Reasonable measures must be developed to ensure that the workplace meets the standards of health protocols, adequate space for employees and social distancing measures. Every employer is required to still designate a COVID-19 Compliance officer who must oversee the implementation and strict adherence of the internal health protocols in the workplace. It is advisable to appoint Compliance officers where employees are required to travel in groups and expected to work from a client’s facility. Gatherings at the workplace are permitted subject to the wearing of face masks, maintaining social distancing and keeping the limit of 50 persons. Persons who hinder, interfere or obstruct an Enforcement Officer designated by the Department of Employment and Labour may be liable to a fine or imprisonment. Employers are advised to notify employees to main strict adherence to their internal health protocols as failure to do so may increase the risk of contracting or spreading the virus. Disciplinary codes and policies must also be updated in line with the rise of the new normal.

READ MORE
1444
Blog
How can a business rescue plan help my business in tough times?

17 August 2020

How can a business rescue plan help my business in tough My business has been struggling since the start of... the Covid-19 pandemic and the national lockdown. I’ve been advised to consider business rescue but I am unsure about how I will get a business plan in place and what this will entail. Can you give some guidance here?times?

READ MORE
1263
Article
Buying or selling a house during lockdown?

17 August 2020,  Natalie Steenkamp

I was just about to put our house in the market and look for a new place when the Covid-19... pandemic hit. I’m very unsure if now is the time to buy and sell. What do you think?

READ MORE
1216
Article
The importance of BEE compliance in accessing Covid-19 relief funding

17 August 2020

I am a restaurant owner and my business has been adversely affected by the Covid-19 pandemic. I want to apply... for relief funding, but I heard that my business needs to be B-BBEE compliant in order to qualify for such. How important is B-BBEE compliance in accessing relief assistance for my business?

READ MORE
1399
Article
What you need to know to access the CCMA in the time of Covid-19

05 August 2020

It was certainly a relief when the CCMA issued a notice announcing the opening of its doors to the public... after two months of closure as a result of the nationwide lockdown. Unfortunately, the CCMA has not been immune to the effects of Covid-19 and many of its regional offices have had to temporarily shut down for decontamination purposes after some of their staff members tested positive for the virus. On 30 July 2020, the CCMA issued a notice regulating access to its services during this pandemic and this notice replaced previous notices that have been issued regulating access to the CCMA. The notice which is effective from 1 August 2020 dictates a number of changes on the further handling of disputes by the CCMA.   The following measures will now apply in respect of conciliation and large-scale retrenchments:  The public is no longer permitted to visit any offices of the CCMA for purposes of making inquiries, submitting or collecting referral forms and any other related documents.  Service of documents may be made by electronic mails and facsimile. Electronic signature of referral forms will be allowed if they can be stored and printed when necessary. The CCMA will issue a certificate of non-resolution if the 30 day period of receiving the referral has lapsed and the parties concerned have not consented to the extension of the period. Where parties reach a settlement, the agreement will be recorded and signed electronically by both parties. Should electronic signatures not be accessible to one or both parties, the parties and the Commissioner will agree on a method to be used to record the terms of the settlement and same will be filed with the CCMA. Should a dispute concern a large-scale retrenchment process, the parties to the dispute must attempt to reach consensus on the manner which will facilitate the process. A digital online platform will first be considered and should this not be possible, a suitable external venue may be used. The following will apply in respect of application proceedings (such as condonation, rescission, etc):  Application proceedings will no longer be scheduled for oral hearings and will therefore be decided on paper. Where this is not possible, they will be conducted through video conferencing. Where oral evidence is required and one or more parties do not have access to a form of electronic means, the CCMA may direct that the matter be heard through a suitable external venue which may be at the employer’s premises. Where an application is made in the form of a statement without a signature, the CCMA requires confirmation from the submitting party through electronic means such as SMS, WhatsApp, voice recording or any electronic method that is not in the public domain and that can be stored safely, retrieved and printed by the CCMA. A ruling issued by the Commissioner will be sent to the Parties by electronic mails or by post and physical collection will be permitted by making prior arrangements with the relevant CCMA that heard the matter. The most identifiable changes this notice has made is that CCMA matters must be conducted via virtual platforms. Where this is not possible, the matter may be heard at any suitable external venue and the CCMA offices being the last resort if these options are not feasible. It is important to note that this notice does not attempt to vary or replace any time period within which a litigant is required to act in terms of any applicable statute or CCMA rules. Consequently, the duty continues to rest with the referring party to ensure timeous referral of their disputes to the CCMA, regardlesss of the method used for such referrals. 

READ MORE
1753
Blog
Implementing fair retrenchments in the time of Covid-19

25 June 2020

The COVID -19 pandemic has resulted in the financial distress of many businesses nationwide. This has unavoidably resulted in retrenchment... having to be considered. It is however important to first determine the fair procedure for implementing retrenchments during the nationwide lockdown.  The duration of the Covid-19 lockdown is unknown to everyone, but we know it is temporary so employers must not be too quick to consider retrenchments when they have not exhausted other alternatives, which may include temporary lay-offs and unpaid leave.The declaration of Covid-19 as a national disaster and the subsequent regulations promulgated in terms of the Disaster Management Act have had little to no effect on the obligations of employers who want to conduct retrenchments and they may therefore not circumvent any of the retrenchments processes that are strictly defined in section 189 of the Labour Relations Act (LRA). Failing to follow the procedures set out by the LRA, an employer could be exposed to a claim of unfair dismissal being referred to the CCMA or Labour Court. Section 189 of the LRA is restrictive and an employer who is contemplating retrenchments due to his/her operational requirements is required to first consult with a trade union, a workplace forum or employees who are more likely to be affected by the contemplated retrenchments. If there is a collective agreement in place, an employer may only consult with those parties required to be consulted in terms of such collective agreement. The Constitutional Court in Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others recently held that section 189(1) of the LRA did not limit the right to fair labour practices by allowing for the exclusion of the minority union and non-unionised employees in the consultation process.  The consultation process must be genuine and must be aimed at reaching some level of consensus with the employees, which may include issues like changing the timing of the dismissals or mitigating the adverse effects thereof. An employer must consider and respond to the representations made by employees during the consultation process.Employers must further select employees who are likely to be retrenched according to a criterion that is objective and fair. Employers and employees may agree to use a selection criteria and record this in writing to prevent any future disputes regarding the fairness of the criteria adopted by the employer. If the business will not be in a financial position to pay severance packages at the time of implementing retrenchments, affected employees must be informed of this during the consultation process in order for both parties to attempt to reach an agreement regarding payment thereof. A retrenched employee is entitled to at least one week’s salary for every completed year of service with an employer. Parties in the consultation process may agree for severance pay to be divided into monthly payments, or defer payment thereof to a later date as agreed to by the consulting parties. Despite the Covid-19 pandemic and the difficulties that may be associated with the retrenchment procedures, employers remain bound to follow the retrenchment process as contained in the LRA and to pay employees all statutory amounts due because the regulations of the lockdown will not excuse employers who circumvent this process. We therefore advise that you consult with a labour law specialist who will offer guidance on the fair implementation of retrenchments. 

READ MORE
2017
Blog

Subscribe to our newsletters

Stay up-to-date with the latest news, laws, and events.

SUBSCRIBE NOW