Legally the two most important human relationships were treated very differently in South Africa 40 years ago. By law is meant both the common law and legislation enacted by parliament at that time, bearing in mind that the majority of citizens were deprived of the vote until 1994. Everything changed in 1979. But unexpectedly approaches were actually reversed, not by legislation but the failure of most lawyers and senior managers to appreciate the purpose of legislative changes introduced following the Wiehahn Report in 1979.
Dismissals
Owners and senior management were permitted to end an employment relationship lawfully simply by giving reasonable notice, usually one calendar month for employees who had worked for some time. But employees who breached their employment contracts in a material or fundamental way could expect to be dismissed summarily, without notice. The law also allowed employers to:
- pay employees what they would have received during the notice period; and
- require them to leave the workplace immediately.
So legal advice at that time to senior management was simply to terminate employment on reasonable notice by paying the employee what would have been earned during the notice period and not to provide any reasons nor follow any prior procedures. This meant that the employee was deprived of any cause of action and was powerless to refer any dispute to any court of law. Terminating contracts summarily [without reasonable notice] is a breach of contract and does provide a cause of action. The onus is then on the employer to prove that the contract was lawfully cancelled in response to material employee breach. So why take that chance – simply pay the notice and eliminate any risk of litigation.
Divorce
Only certain marriages were recognised by the law and the parties could not legally dissolve the marriage without a court order, a decree of divorce. But there were limited grounds for divorce. Essentially it boiled down to fault. So if one spouse committed adultery or deserted the other spouse the high court was allowed to grant a divorce to the ‘innocent’ party. And what is more the ‘guilty’ spouse forfeited all rights to the patrimonial benefits of the marriage. So particularly women knew that their husbands could not dissolve the marriage legally unless they deserted them or committed adultery with another man, whether married or not.
The concept of “constructive desertion” was known to the law at that time. If the parties agreed to get a divorce then usually the husband left the matrimonial home, thus providing the wife with the necessary ground to obtain a divorce and it became a legal formality without the judges being required to ask any further questions.
Comparison
So fault was not a requirement to end an employment relationship. It was treated like any other commercial transaction where termination was governed by the agreement between the parties or the common law requirements of reasonable notice. But although fault was a strict requirement to end a marriage the parties could circumvent it by using the largely artificial device of ‘constructive desertion’. Employees enjoyed no legal protection against dismissal other than receiving notice, or payment instead thereof, unless by their own gross misconduct they forfeited that right. Only in the case of divorce was the court entitled to know why a divorce should be granted and the rights of the ‘guilty spouse’ were then forfeited. A zero-sum game approach [one person’s gain is equivalent to another’s loss].
Legislative changes in 1979
Divorce
Parliament abandoned the ‘fault’ requirement as a pre-condition to enable the high court to dissolve a marriage by grant a decree of divorce. See the Divorce Act 70 of 1979 [excerpts below]. The high court could grant a decree of divorce on the ground of the irretrievable break-down of a marriage if satisfied that “the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them”.
So women lost the protection of knowing that they could not be divorced unless they deserted their husband or committed adultery. But they did not forfeit the benefits of the marriage unless there were very good reasons for doing so. In most instances the parties conclude a settlement agreement dealing with all the consequences of the divorce, including the division of assets and safeguarding the best interests of the children.
Dismissal
Parliament amended existing legislation to protect employees from being:
- unlawfully dismissed by obliging employers to give minimum periods of notice ito of the Basic Conditions of Employment Acts of 1983 and again in 1997, unless the reason for dismissal was a material breach of contract, such as gross misconduct [expressed as ‘cause recognised by law‘ in BCEA s 37(6) see below]; and
- unfairly dismissed substantively, meaning that the reason for dismissal had to be valid and fair and
- related to the conduct or capacity of employees; or
- based on the operational requirements of the enterprise; and
- unfairly dismissed procedurally, meaning simply that employees must be:
- given a right to respond [without any formal hearing] to any allegations being made concerning them; or
- allowed to engage in a meaningful joint consensus-seeking process when senior managers ‘contemplate’ having to dismiss based on operational reasons.
But in general there has been a complete failure to understand that neither the LRA nor the BCEA nor the common law requires senior managers to prove ‘fault’ on the part of employees before dismissing them.
Simply put there has been a complete absence of an holistic approach [relating to the total instead of just to its parts] that was introduced by legislation with regard to dissolving marriages. That Act separated the ground for divorce from the consequences thereof, as discussed above, and is very clear from the wording of the Divorce Act, quoted below.
New era needs to dawn
Hopefully a new era will dawn and senior managers and lawyers will appreciate that the correct approach to dismissals involves seeing the issue in the same way as the dissolution of marriages and split the inquiry into two distinct parts:
- management’s right to dismiss [lawfully and fairly]; and
- the rights of employees to reasonable notice, or payment instead thereof, except when they forfeit their rights by engaging in conduct that is gross or very serious. In this regard see the approach of the Experts at the ILO.
DIVORCE ACT NO. 70 OF 1979
[emphasis and some minor formatting added]
“3 Dissolution of marriage and grounds of divorce.
A marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted are—
(a) the irretrievable break-down of the marriage as contemplated in section 4;
(b) the mental illness or the continuous unconsciousness, as contemplated in section 5, of a party to the marriage.
4 Irretrievable break-down of marriage as ground of divorce.
(1) A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.
(2) Subject to the provisions of subsection (1), and without excluding any facts or circumstances which may be indicative of the irretrievable break-down of a marriage, the court may accept evidence—
(a) that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action;
(b) that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or
(c) that the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing imprisonment as a result of such sentence,
as proof of the irretrievable break-down of a marriage.
(3) If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.
(4) Where a divorce action which is not defended is postponed in terms of subsection (3), the court may direct that the action be tried de novo, on the date of resumption thereof, by any other judge of the court concerned.
5 Mental illness or continuous unconsciousness as grounds of divorce.
. . . . .
5A Refusal to grant divorce.
If it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed or the court may make any other order that it finds just.
6 Safeguarding of interests of dependent and minor children.
(1) A decree of divorce shall not be granted until the court—
(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances; and
(b) if an enquiry is instituted by the Family Advocate in terms of section 4 (1) (a) or (2) (a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in the said section 4 (1).
(2) For the purposes of subsection (1) the court may cause any investigation which it may deem necessary, to be carried out and may order any person to appear before it and may order the parties or any one of them to pay the costs of the investigation and appearance.
(3) A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor child to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent.
(4) For the purposes of this section the court may appoint a legal practitioner to represent a child at the proceedings and may order the parties or any one of them to pay the costs of the representation.
7 Division of assets and maintenance of parties.
(1) A court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.
(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to:
- the existing or prospective means of each of the parties,
- their respective earning capacities,
- financial needs and obligations,
- the age of each of the parties,
- the duration of the marriage,
- the standard of living of the parties prior to the divorce,
- their conduct in so far as it may be relevant to the break-down of the marriage,an order in terms of subsection (3) and
- any other factor which in the opinion of the court should be taken into account,
make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.
(3) A court granting a decree of divorce in respect of a marriage out of community of property—
(a) entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; or
(b) entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988,
may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.
(4) An order under subsection (3) shall not be granted unless the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner.
(5) In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3), the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party as contemplated in subsection (4), also take into account—
(a) the existing means and obligations of the parties, including any obligation that a husband to a marriage as contemplated in subsection (3) (b) of this section may have in terms of section 22 (7) of the Black Administration Act, 1927 (Act No. 38 of 1927);
(b) any donation made by one party to the other during the subsistence of the marriage, or which is owing and enforceable in terms of the antenuptial contract concerned;
(c) any order which the court grants under section 9 of this Act or under any other law which affects the patrimonial position of the parties; and
(d) any other factor which should in the opinion of the court be taken into account.
(6) A court granting an order under subsection (3) may, on application by the party against whom the order is granted, order that satisfaction of the order be deferred on such conditions, including conditions relating to the furnishing of security, the payment of interest, the payment of instalments, and the delivery or transfer of specified assets, as the court may deem just.
(7)
(a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets.
(b) The amount so deemed to be part of a party’s assets, shall be reduced by any amount of his pension interest which, by virtue of paragraph (a), in a previous divorce—
(i) was paid over or awarded to another party; or
(ii) for the purposes of an agreement contemplated in subsection (1), was accounted in favour of another party.
(c) Paragraph (a) shall not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded.
(8) Notwithstanding the provisions of any other law or of the rules of any pension fund—
(a) the court granting a decree of divorce in respect of a member of such a fund, may make an order that—
(i) any part of the pension interest of that member which, by virtue of subsection (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member;
(ii) the registrar of the court in question forthwith notify the fund concerned that an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party and that the administrator of the pension fund furnish proof of such endorsement to the registrar, in writing, within one month of receipt of such notification;
(b) any law which applies in relation to the reduction, assignment, transfer, cession, pledge, hypothecation or attachment of the pension benefits, or any right in respect thereof, in that fund, shall apply mutatis mutandis with regard to the right of that other party in respect of that part of the pension interest concerned.
(9) When a court grants a decree of divorce in respect of a marriage the patrimonial consequences of which are according to the rules of the South African private international law governed by the law of a foreign state, the court shall have the same power as a competent court of the foreign state concerned would have had at that time to order that assets be transferred from one spouse to the other spouse.
9 Forfeiture of patrimonial benefits of marriage.
(1) When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the
- the duration of the marriage,
- the circumstances which gave rise to the break-down thereof and
- any substantial misconduct on the part of either of the parties,
is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.
(2) In the case of a decree of divorce granted on the ground of the mental illness or continuous unconsciousness of the defendant, no order for the forfeiture of any patrimonial benefits of the marriage shall be made against the defendant.”
BASIC CONDITIONS OF EMPLOYMENT ACT NO. 75 OF 1997
“37 Notice of termination of employment.
(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than—
(a) one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more than one year;
(c) four weeks, if the employee—
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for more than six months.
(2)
(a) A collective agreement may not permit a notice period shorter than that required by subsection (1).
(b) Despite paragraph (a), a collective agreement may permit the notice period of four weeks required by subsection (1) (c) (i) to be reduced to not less than two weeks.
(3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer.
(4)
(a) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee.
(b) If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands.
(5) Notice of termination of a contract of employment given by an employer must—
(a) not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and
(b) not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three, except sick leave.
(6) Nothing in this section affects the right—
(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; and
(b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.
38 Payment instead of notice.
(1) Instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received, calculated in accordance with section 35, if the employee had worked during the notice period.
(2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise.”