CONSTITUTIONAL RIGHTS AND THE LIMITS OF VACCINATION POLICIES
The distribution of a COVID-19 vaccine is seen as a fundamental component to ending the pandemic. However, mandatory vaccinations in the workplace should be treated with caution by all employers. As it stands, there is currently no legislation in South African law that specifically requires an employee to be vaccinated against COVID-19.
As a point of departure, the Occupational Health and Safety Act mandates all employers to provide and maintain a working environment that is safe and without risk to the health of their employees. In the same breath however, the National Health Act states that a health service, which includes the administration of any medication or vaccination, may not be provided to a person without their consent, unless the failure to treat the person will result in a serious risk to public health.
Invariably, the question that now arises is whether an employer may, after considering these two pieces of legislation, enforce a compulsory vaccination policy in the workplace.
The South African Constitution states unequivocally that everyone has the right to bodily and psychological integrity, which includes the right to security in and control over one’s body. The Constitution, however, also limits the right to bodily and psychological integrity to the extent that it is reasonable and justifiable in an open democratic society based on human dignity, equality, and freedom. In essence, an employer’s obligation to ensure a safe and healthy working environment must be balanced with the employees’ constitutional right to bodily integrity when determining whether there are justifiable grounds to limit the right.
Furthermore, section 5(2) (c) of the Labour Relations Act bars an employer from prejudicing an employee for the employees’ failure or refusal to do something that the employer may not lawfully permit or require the employee to do. Similarly, section 187(1) (f) of the Labour Relations Act prohibits dismissals that discriminate against employees based on their religion, conscience, belief or culture. A similar prohibition is also contained in section 6(1) of the Employment Equity Act, which is also stands as a safeguard for employees.
In light of the aforementioned legislative framework, a court of law may be hesitant to uphold an employer’s decision to dismiss an employee for refusing to subject themself to a COVID-19 vaccination. Therefore, it stands to reason that, an employer has an extremely limited scope to enforce a vaccination policy in the workplace. A challenge that an employer will have to face is the ability to provide the court with compelling reasons that, under the circumstances, the rights of the employee to refuse the vaccine are outweighed by other constitutional rights such as the right to a safe environment or the right to life by way of an example.
In conclusion, there is no current legislation in South Africa that permits an employer to enforce a vaccination policy in the workplace or to dismiss employees for their refusal to be vaccinated. Therefore, as a general rule, an employee may not be dismissed for his or her refusal to be vaccinated. Employers do, however, have a limited scope to deviate from this general rule and may implement a vaccination policy in the workplace, provided that compelling reasons for its implementation exist. Employers are however, advised to do so with caution and to obtain expert advice before the implementation of such policies. Employers are encouraged to motivate employees to agree to be vaccinated through means of education as opposed to coercion. At JJR Inc. we have a number of labour law experts who will gladly assist both employers and employees in this regard.
SELLING YOUR PROPERTY? HERE ARE SOME OF THE ITEMS ON WHICH YOU MIGHT INCUR COSTS AS A PROSPECTIVE SELLER
In this article we are taking a look at what costs you need to keep in mind when selling a property. When selling immovable property, most of us just think about the Profit that’s coming back to our pockets, however there are more financial implications to be borne in mind. The following costs and expenses should be taken into consideration when selling a property:
- Agent’s commission: If you decided to let a traditional real estate agency assist you with advertising and finding a buyer for your property, the Agency is entitled to commission. As the Seller, you will need to agree on the commission amount that will be payable to the Agency, which is in most transactions a percentage of the Purchase Price, or even a set amount. This agreement needs to be contained in a Commission Agreement, signed by both the Seller and the Agent. Some agencies charge a flat rate-fee when selling a property and you will need to confirm what is included in such a fee to enable you to make an informed decision. Furthermore, is of the utmost importance to confirm whether the Agency is a registered VAT vendor and if so, whether the agreed percentage or amount includes or excludes VAT. Should Vat be excluded you will need to make provision for the agreed percentage or amount plus an additional amount of 15% .
- Conveyancers Fee: Should you opt not to make use of an Agent and should you require a Conveyancer to draft an Offer to Purchase on your behalf will be liable for cost pertaining to the drafting of such an Offer to Purchase.
- Bond cancellation: Should there still be a current mortgage bond registered over the Property, the bond will have to be cancelled simultaneously with the transfer. The Conveyancers attending to your transfer will request cancellation settlement figures from the Bank, whereafter the Bank will appoint attorneys to attend to the cancellation of the said bond. It is important to take note that there are cancellation costs payable to these attorneys representing the Bank and who will attend to the cancellation of your bond in the Deeds Office. Apart from the Attorneys costs, the outstanding Bond amount together with interest calculated thereon until cancellation will be deducted from the Purchase Price. In this regard, Sellers can save costs informing the Bank that the property is being sold and that the bond is being cancelled, as soon as the property is listed. This is due to the fact that the Banks require at least 90 days’ notice for the intended cancellation of a bond, otherwise penalty fees will be payable by the Seller.
- Compliance Certificates: These include, but is not limited to the Electrical Certificate of Compliance (COC), Gas Compliance Certificate, Electric Fence installation certificate, and costs to obtain these certificates can vary depending on the amount of work required to ensure that the Property is compliant. Different provinces require different additional certificates such as Entomologist Certificates, Borehole Certificates and Water/ Plumbing Certificates. Also, keep in mind that all these certificates are only valid for a certain period and you must therefore ensure that it is valid at date of registration of the property into the Purchaser’s name.
- Municipality clearance figures: The Conveyancers will apply for rates clearance figures from the Municipality and as the Seller, you will be liable to pay these issued figures in order to obtain a clearance certificate that gets lodged in the Deeds Office together with the Transfer documents. Most of the Municipalities requires payment in advance for at least three months to ensure that there are no outstanding amounts on date of registration. On registration and when you close your Municipal account, you apply for a refund from the Municipality for any amounts paid by you after the property has been registered into the Purchaser’s name.
- Relocation costs and administration: Moving trucks, breakages, the administration regarding informing people of your change of address, and taking days off work to coordinate the move should also be considered. Poor planning when moving can add to your stress levels significantly, but can be avoided with proper preparation.
- Sectional title clearance figures from the Body Corporate (for sectional title units): As with the Municipality, all Levy Figures need to be paid up until registration to the Body Corporate or their Managing Agent. The Conveyancer will request levy clearance figures payable in advance. On registration a pro rata calculation will be done and the Seller will only be liable for Levies payable until date of registration, unless otherwise agreed to in the Offer to Purchase. Home Owners Association
Should there be a Home Owners Association appointed over the property, they will also require their levy figures to be paid in advance before they will consent to the transfer, which consent has to be lodged in the Deeds Office.
- Building Plans: It is important to confirm whether updated and approved building plans exist for you property. If so, this can be delivered to the Purchaser on request. If not, it is a necessity to specify this in the Offer to Purchase and to clearly confirm which party will be liable for all costs pertaining to the obtaining of such Building Plans. In some instances, the Banks insist on building plans to be delivered before they can allow the Bond of your potential buyers to register in the Deeds Office. It is therefore imperative to ensure that the Offer to Purchase truly reflect your intention regarding building plans, obtaining these building plans and costs relating thereto.
- Original Title Deed: The Original Title Deed of a property being transferred must be lodged in the Deeds Office together with the transfer documents. Should there be no bonds registered over such Property the Original Title Deed should be in the possession of the Seller. If such an Original have been lost or destroyed a new copy has to be obtained from the Deeds Office which leads to further cost to replace that Lost Deed. An advert has to be placed in a News Paper, the Attorneys requires an additional fee for the drafting of an application to replace the lost Deed and the Deeds Office also has an additional fee to issue such a copy for use in the Deeds Office.
The abovementioned is not a closed list and some of the costs are avoidable if one takes time to do proper planning when selling a property. Another factor that may influence the abovementioned costs and expenses is the time period within which the transaction registers and any delays or frustrations may once again be avoided with proper planning and preparation. For well-reasoned and professional advice, please do not hesitate to contact us.
WHY THE POPI ACT MATTERS
The right to privacy is enshrined in Section 14 of South Africa’s Constitution and we understand it to be a vital human right. It states:
“Everyone has the right to privacy, which includes the right not to have –
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized;
(d) the privacy of their communications infringed.”
It’s the last part of the abovementioned list that is becoming a growing concern. All around the world more and more focus is being placed on protecting private information as countries and governments are setting new laws to ensure the safety of their citizen’s information online.
In an age where information is growing at an exponential rate, no digital exchange of information can be left unprotected. For this reason, the Protection of Personal Information (POPI) Act comes into full effect from the 1st of July 2021.
Non-compliance could carry hefty fines, but as with most regulatory pieces of legislation, compliance is more than just a box to tick. Let’s consider why personal information should be protected:
- It builds confidentiality
Protection of data is very much a protection of the information that people hold as important. By capturing, storing, and processing personal information, you are essentially guaranteeing the confidentiality of your transactions with the other party.
Confidentiality is built upon when you can guarantee that none other than you yourself are able to access and process the information you store. Having a secure database stored with good encryption on your servers is a good way to keep to the promise of security you give to your customers/clients.
- It ensures the integrity of information
In a similar vein, data protection ensures that data remains accurate and integrous. Your customers/clients need to be sure that all their data is current and accurate, and that no manipulation of the data can take place.
Furthermore, to ensure the integrity of information, the data needs to be frequently backed up while remaining synchronous (i.e. whenever a change is made that change must reflect in the backup in as little time as possible).
Safeguards can also be put in place to ensure that no data is duplicated or stolen.
- It leads to trust
With regard to information storage and access, trust is built when your data subjects know that their data will always be available when and where they need it. Readily available data and the ability to request changes to the data with little to no delay are ways to build trust and assure data subjects that you are handling their data ethically.
At the end of the day, how you handle information is a question of ethics. What the POPI Act brings is a sense of relief in a modern age that there will be repercussions for the mismanagement of data and that there is greater regulation of data management.
Soon the everyday consumer will have a lot more protection against unwanted marketing and unethical data practices — practices that have been allowed to go on for too long. For those who are still lagging behind, the time is ticking and failure to become fully POPI Act compliant could hold serious consequences. Make sure to get your matters in order before 1 July 2021.
- The Constitution of South Africa