Aspects of the right to holiday leave

All employees enjoy the right to annual paid holiday leave from work. When an employment relationship comes to an end, an employee is entitled to be paid out for leave days accrued but not taken. Sometimes disputes arise when employees claim payment for leave days accrued in past years but never taken, or when employers insist that leave days not taken in a specific leave cycle are forfeited. What is the correct legal position as regards leave days accrued but not taken? Can the employee collect them indefinitely, or are they lost forever when a leave cycle ends?

The Basic Conditions of Employment Act (BCEA) requires an employer to grant an employee her annual leave not later than six months after the end of a 12 month annual leave cycle. This suggests an employee who is keen to take leave, and an employer who must reluctantly accept that leave days must be granted. However this is not always the case. 

In the Labour Court in the 2004 matter of Jooste versus Kohler Packaging, the employee had accumulated over 140 leave days over a number of years, and insisted on being paid out the value thereof upon his resignation. The court pointed out that an employee is only entitled to leave days (or payment on termination in lieu thereof) accrued in the current cycle or in a cycle which ended less than six months ago. Leave days accrued in leave cycles that ended more than six months before, fell away. To allow the accumulation of leave beyond this point, would amount to unlawful circumvention of the BCEA.

In the 2013 matter of Ludick versus Rural Maintenance, the Labour Court was confronted with an employment contract.which required the employee to take leave within one month of the employer’s financial year-end, failing which those leave days would fall away. The court pointed out that the annual leave provisions in the BCEA cannot be contracted out of. Thus the provision in the employment contract was invalid. The employee was still entitled to his leave days until six months past the end of the leave cycle, regardless of what was agreed in his contract.

While the BCEA regulates the handling of annual leave days provided by law, some employers offer their employees additional, more generous leave over and above the legal minimum. Additional leave days can be subject to different considerations than those set out in the BCEA. If any such different considerations apply, however, this should be spelled out in the employment contract, whilst ensuring that the BCEA is respected in respect of ordinary annual leave. 

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The voetstoots clause, and a seller’s liability for unlawful structures sold

In the recently reported case of Haviside versus Heydricks, the Pietermaritzburg High Court grappled with the right of a seller to rely on a voetstoots clause, when the buyers of an old home discovered that a double garage was illegally built on the property, without approved plans.

The buyers wished to build a flat above the double garage, and approached the local council with building plans, seeking permission to go ahead. The council pointed out that the double garage was built illegally whilst the seller was the owner, without council permission. The buyers ascertained that the garage also did not meet building regulations, and would have to be rebuilt properly in order to support a flat. It would be a costly exercise to demolish the garage and have new plans drawn and approved and a new garage built. The buyers sought to hold the seller liable for these costs.

In the magistrates court, the seller pointed out that the deed of sale between the parties contained a voetstoots clause. “Voetstoots” means “as it stands”, that is with defects and all. However if a defect is known to the seller but is not apparent on careful inspection, then the seller has a duty to disclose the defect to the buyer. If the seller deliberately conceals the defect with an intent to mislead the buyer, then she or he will be held liable for the defect regardless of the voetstoots clause.

Furthermore, the buyer alleged that the property was owned by her but resided in by her mother. She visited the house once a year only. At some point, without reference to her, her mother and brother filled in the walls of an existing carport to create a double garage on the property. She made no enquiries as to whether plans were approved or building regulations met, as her brother took responsibility for the maintenance of the home. Her mother had all dealings with the estate agents who marketed the home for sale, and she had no dealings with the buyers at any stage.

The magistrate found that it was an implied term of the deed of sale that the garage was erected in terms of approved plans and in compliance with building regulations. The seller ought to have made enquiries and ought to have informed the buyers that the structure was illegal. Failing to do so, she made a misrepresentation that induced the buyers to buy the property and to do so at a higher price than was warranted. The magistrate found that the seller could not use the voetstoots clause as a defence.

On appeal, the high court disagreed. In order to avoid the voetstoots clause, that court said, the buyers had to prove that there was a latent defect of which the seller was aware, and that the seller intentionally concealed its existence with the intention to defraud.

The court agreed that the illegality of the structures qualified as a latent defect in the property. But the evidence showed that the seller was entirely unaware of that defect.

The question as to whether the seller was negligent in that unawareness did not enter into the matter, as negligence does not amount to intent.

In the absence of evidence of knowledge, no intent to defraud could be detected, and the seller remained protected by the voetstoots clause. The high court overturned the magistrate’s decision, and exonerated the seller. Furthermore, the buyers were ordered to pay the seller’s legal costs.

This decision underlines the importance of enquiring after building plans when considering the purchase of a property. It would also be prudent to include a clause in a deed of sale in which the seller warrants that all buildings have been erected in accordance with approved plans and applicable building regulations. The presence of such a clause would prevent a seller from relying on a voetstoots clause if an illegality were discovered after the sale. In the absence of proof of compliance or a warranty of compliance, a buyer runs the risk of making an unpleasant discovery after the event, and being left with unforeseen costs and little recourse.

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