Ané Kotzé

The working relationship, much like every other relationship, has its ups and downs, and can be terminated by either party. This begs the question – if normal relationships can reach an amicable mutual termination, why can’t working relationships do the same?

Well, the answer is – they can!

Usually there are four different methods by which an employment relationship can be terminated, being:

  1. Dismissal: where the employer elects to terminate the working relationship based on a breach in the trust relationship that came about from the employee’s conduct.
  2. Resignation: where the employee decides to terminate the working relationship for a better opportunity, intolerable working circumstances or a sabbatical (the possibilities and reasons are endless).
  3. Automatic termination: where the employment period in terms of a limited duration contract is fulfilled, or a retirement age is reached.
  4. Retrenchment: where the operational requirements of the company necessitates a termination in the contract of employment due to economic, technological, structural or similar needs of an employer.

However, what happens if none of the above is applicable and the parties both feel that the relationship is just not working or if an employer suspects misconduct but cannot prove same? Is there a way to terminate it, and if so, is the proposed way sound in law?

The recent Constitutional Court case of: Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another[1] re-affirmed the validity and lawfulness of a mutual separation agreement in terms of employment law.

A mutual separation agreement is an agreement entered into and between both the employer and the employee, whereby the parties agree to mutually terminate the employment relationship based on an agreed upon compensation amount, where after they both forfeit their right to any further claims in the bargaining forums or Courts.

This eventually means that the termination is by no fault of either party, based on the consent of both parties to mutually terminate the working relationship, in an amicable fashion.

Employers are however advised to rather consult with an attorney prior to drafting and entering into a mutual termination / separation agreement as this agreement, much like any other contract, has certain requirements in order to be valid and sound in law.

Employees on the other hand are encouraged to fine comb mutual termination agreements and to consult with attorneys before signing same, in order to make sure that the settlement is to their benefit and that they are not entering into an agreement that can hamper future claims wherein they could have been awarded a larger amount than the proposed compensation in the mutual termination agreement.

Contact us now to find out more.

[1] (2016) 37 ILJ 2723 (CC)


Melcom Oosthuizen

With all the recent developments politically, the shunning of the Gupta Family, the President’s call to end corruption and further the much publicised penultimate finale of the Van Breda case, we  find it necessary to explain the differences in burden of proof in different fields of law.

In general, our law is divided into Public and Private Law.  Public Law, being law that affects society as a whole, and Private Law which governs relationships between individuals (including juristic persons).

In most areas of our law, the burden of proof rests on the accuser and involves the accuser proving their matter on a balance or preponderance of probabilities. This burden involves proving that a certain version was more likely than not to have occurred.  In essence, a person would only need to prove on a balance of probabilities that their version is 50.01% more likely, in order to be successful with their case. This, of course, has its own set of rules and it is therefore essential that you consult with an attorney to ensure that your evidence and witnesses are sufficient to satisfy the requirements of the law of evidence.

Criminal matters on the other hand, require the Court to make a decision based on the accused’s guilt and a Court must therefore establish the fact beyond a reasonable doubt. This means that if any reasonable doubt or possibility of another explanation exist as to the accused’s guilt, the accused cannot be found guilty of the offence.

Public opinion however often shows that the members of the public do not fully understand how certain accused individuals are not found guilty of what appears to be drastic and inexcusable charges. This has to do with the burden of proof and the facts presented during trial. Legally, this understanding or distinction is clear cut.

Members of the public become even more confused when this line is crossed where labour and criminal law matters are concerned.  In both cases, a person could be charged with committing an offence, and despite this the verdict, penalties and repercussions might be vastly different. For example, an individual could be found guilty of theft in a labour law matter and be dismissed with immediate effect, but subsequently found not guilty in a criminal law matter of the same nature. It is important to understand the burden of proof and the clear distinction between civil and criminal law matters. This confusion might result in a party failing to discharge their necessary onus.

In furtherance, Section 35(3)(h) of the Constitution, Act 108 of 1996, provides that “every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during these proceedings”.

In the case of S v Van Rooyen,[1] the Constitutional Court provided the following: “Our courts are manned by full-time Judges trained in the law, who are outside party politics and have no personal interest in the cases which come before them, whose tenure of office and emoluments are protected by law and whose independence is a major source of the security and well-being of the state”.

Decisions made by the Courts do not take (or are not supposed to take) public opinion into consideration, but merely the legal facts put before them and as such, we trust our Judges and Magistrates to make an informed decision based on the legal principle established through the burden of proof. These decisions may be taken on review or appeal resulting in a tried and tested legal system. Therefore, no matter the outcome of any decision of any potential future actions, we trust this article will assist in a better understanding of how our Honourable Courts’ have made their decisions and conclusions.

[1] S and Others v Van Rooyen and Others (General Council of the Bar of South Africa Intervening) (CCT21/01) [2002] ZACC8; 2002 (5) SA 246; 2002 (8) BCLR 810 (11 June 2002).


Lisa Blass

Are you aware that there are many environmental laws and regulations that impose responsibilities and compliance requirements on businesses?

A good starting point to ensure compliance with the many laws and regulations would be to compile an Aspects and Impacts Register for your business. Compiling this Register entails considering and setting down all activities, processes and inputs involved in producing the goods and services of your business.

From this list, an assessment can then be made of the impacts that these processes and inputs have on the environment. It is important to look at the nature of these impacts, their likelihood of materialising and their severity on the environment.

The following are three examples of how business activities can impact on the environment:

  • Chemicals and other pollutants in wastewater: these substances move into our wastewater and storm water systems, finding their way into our rivers and into our drinking water.
  • Gases that are emitted into the air from various sources including chimney stacks: these gases negatively affect our air quality and contribute to climate change.
  • General and hazardous waste that is disposed to landfills: if this waste is not contained and treated according to sound engineering and legal standards it can produce liquid waste or leachate that can carry toxic chemicals into our ground and surface water. Additionally methane gas, a greenhouse gas, is also emitted from the organic waste disposed to landfills and this also contributes negatively to climate change.

Compiling an Aspects and Impacts Register is one requirement to developing an environmental management system such as ISO 14001. An environmental management system can assist businesses in their risk management including managing financial risks and risks of civil and criminal legal liability.

It is also the starting point to identifying all legislation that is applicable to the business operations and with which business is required to be compliant, including the provincial laws and local municipal bylaws, the Gazetted norms and standards applying to the business and the authorisations and licenses required for the many business operations.

The Register is an important tool to ensure that everyone who is responsible for environmental legal compliance in the business is aware of their role and responsibility to monitor, avoid or mitigate activities that can have negative impacts on the environment.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.