The Department of Employment and Labour has established a COVID-19 TERS that works through the Unemployment Insurance Fund (UIF) as one of the measures to help both workers and businesses impacted by the national lockdown due to the COVID-19 pandemic that has paralysed numerous businesses and left many in South Africa without an income. The first directive that was issued on 26 March 2020 has been amended on 8 April 2020 to, inter alia, give clarity around some questions that arose from the first directive.

President Cyril Ramaphosa also stated during his address to the nation on 21 April 2020 that the UIF’s special COVID-19 benefit has already paid out R1.6 billion as at 21 April 2020 and thereby assisted over 37 000 companies and 600 000 workers. He added that R40 billion has been set aside for income support payments for workers whose employers are not able to pay their wages.

The Department’s Chief Director of Labour Relations, Thembinkosi Mkalipi said that employers are encouraged not to request employees to utilise their annual leave credits for the lockdown, but to rather utilise the financial assistance placed at their disposal through the COVID-19 TERS in cases where companies cannot afford to pay their employees. Employers must apply for the COVID-19 TERS benefits if they cannot afford to pay their workers. Employees cannot apply for the COVID-19 TERS benefits themselves. Employees can only apply for normal UIF benefits themselves as in the past but that is completely different from the COVID-19 TERS benefit.

The COVID-19 TERS benefit works on the following principle: If a business is unable to pay their employees, they can apply for this benefit; if a business can still afford to pay employees a part of their salaries, the TERS benefits will “top up” these payments; and if a business had to temporarily lay-off workers, whether total or partial, they can also apply for the TERS benefits. It is however important to note that employees cannot earn more than 100% of their current salaries.

It is particularly important to note that all applications for the COVID-19 TERS benefits must be submitted during the lockdown period. The Department has indicated that no applications will be entertained once the lockdown has been lifted.

Applications must be submitted online. The starting point is that businesses must send an email to covid19ters@labour.gov.za to register their companies for this benefit. The business will then receive an automatic reply detailing the documents they are required to submit and a step by step guide on the process to follow.

The following key documents will be required:

  • Letter of Authority, on an official company letterhead granting permission to an individual specified to lodge a claim on behalf of the company;
  • MOA (completion of the agreement between UIF, Bargaining Council and Employer). The process has been made easier with the new regulations in that a business no longer has to provide a signed Memorandum of Agreement (MOA). The business can simply accept the terms electronically or in writing;
  • Prescribed template that will require critical information from the employer;
  • Evidence/payroll as proof of last three months employee(s) salary(ies); and
  • Confirmation of bank account details in the form of certified latest bank statement.

The completed application together with the documentation must then be emailed to Covid19UIF@labour.gov.za. A hotline has also been put in place for the TERS benefit, being 012-337 1997. The Department indicated that the turnaround time is currently around 15 days. The Department can however not guarantee this turnaround timeframe for new applications.

Regarding the amended regulations, Jenine Naidu published the following short and self-explanatory summary on the Financial Institutions Legal Snapshot’s website on 15 April 2020 (https://www.financialinstitutionslegalsnapshot.com/2020/04/8-things-to-know-about-the-amended-covid-19-ters-directive/):

“Below are the key changes that have been effected:

1.      Employees affected by the partial closure of their employer’s business are entitled to benefits

  • The previous Directive did not define ‘closure of operations’ and it was not clear whether a partial closure of operations would meet this requirement.
  • Businesses that are still in operation, albeit partially, because they provide essential services and goods may now claim on behalf of employees who have been affected by the partial closure.

2.      Employers do not need to prove financial distress in order to claim

  • Employers simply need to prove that they have partially or totally ceased business operations as a direct result of the COVID-19 pandemic.
  • The focus is now on ‘affected employees’ rather than a business in financial distress.

3.      The maximum salary to be considered when calculating the benefit is R17 712

  • The previous Directive stated that salary benefits would be capped at        R17 712.
  • The amendment confirms the position that benefits are calculated on the income replacement rate sliding scale and are therefore capped at 38% of R17 712.

4.      C19 TERS benefits may be used by employers to ‘top up’ salaries of affected employees

  • The previous Directive precluded employees who were being paid during the closure of their employer’s business operations from claiming these benefits.
  • Employees who are being paid a portion of their salaries may now claim benefits, provided that the sum of the partial payment from their employer and the UIF benefit does not exceed their normal remuneration.

5.      No employee shall receive a total remuneration of less than R3 500

  • This provides protection to employees whose benefits fall below the national minimum wage.
  • This applies with the proviso that the total amount that an employee receives from both the UIF and their employer must not exceed that employee’s normal remuneration (except where the normal remuneration was below R3 500).

6.         The Memorandum of Agreement between the employer or bargaining council and the UIF may be concluded electronically

  • The employer or bargaining council may either submit a signed MOA or may confirm their acceptance of the terms and conditions stipulated in the MOA in writing or electronically.

7.      Where a bargaining council has applied for benefits, an employer falling within the council’s scope may not apply

  • This provision only applies if the required collective agreement has been concluded and if the bargaining council has entered into the requisite MOA with the UIF.
  • The MOA may provide that employees falling outside the scope of the bargaining council may claim these benefits.

8.      No bank may withhold the C19 TERS benefits owing to employees

  • This provision applies even in circumstances where an employer or bargaining council has breached the terms of their overdraft facility or any other similar contractual arrangement with their bank.”

Good news for businesses is that they no longer have to prove that they are in financial distress. Even if a business has only been partially closed or the employees worked shorter hours, the business can still apply for this benefit. The employer may however not use the money received in terms of this benefit for any use other than for payment of the business’ employees.

It is furthermore important to note that a business must be registered with the UIF and make monthly contributions as required by the Contributions Act of 2002 before the COVID-19 lockdown started to qualify for TERS benefits. Companies who only registered after 15 March 2020 may not be eligible for these benefits.

The Department of made it clear that government will take serious steps against companies if they find that they were not paying their workers and failed to claim from the COVID-19 TERS. The Department furthermore stated that “workers should not be punished because of irresponsible employers” and encouraged businesses to apply for this benefit on behalf of their employees to soften the lockdown blow to their employees.

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Early signs of pending non-payment :-


  • No word from the debtor when payment falls due


Silence prevails.  This happens frequently.  You have supplied and delivered goods, provided services or rendered commercial performance to the benefit of the debtor.  Notwithstanding all of this you hear nothing when payment falls due.  An easy ploy to buy time.  The best approach in this scenario is to make immediate contact.  Don’t leave the situation unattended.  You need to find out why payment has not been made.  Go further and query whether there is any problem regarding payment.  Don’t be evasive on the issue.  Deal with it directly.  Best to do it this way for the benefit of your own cash flow management.


If the debtor tells you non-payment is an oversight or something to that effect, you must immediately put this in writing, usually by way of email, and send an appropriately worded letter back to the debtor copying in senior management.  That letter must record the telephone conversation you have had with the debtor.  Who you spoke to, what date and what time. Importantly you need to emphasise the debtor’s confirmation and acknowledgment that the debt is due.  Reaffirm that the debtor has no problem with payment and that payment will be forthcoming.  Always try and put a timeline in when you talk to the debtor.  If you have managed to do that include it in the letter.


If you simply leave the situation in the hope that the debtor will pay shortly, you do so at your peril.  Old debts are bad debts!


Furthermore, the quicker you deal with a “silence” situation, the better.  When you call the debtor you may be advised that there is a dispute.  If that is the case, best you know as soon as possible.  You might need to take action urgently if, for example, there is an opportunity for you to get your goods back or exercise some other form of security.  It is also preferable for you to hand a problem situation over to your attorneys as soon as you can.  If for example you need to apply to liquidate the debtor, the sooner that process commences the better your chances of recovery.


  • A query from your debtor on your accounting records


Calls for invoices and statements which you know the debtor already has is also common.  The debtor’s tactic is to try and shift the onus on to you.  Quite often this is done to try and secure a discount or a delay in the time for payment.  Once again utilise email communications to set up a paper trail.  Carefully record the debtor’s request and emphasize that you have complied with it, giving the debtor all he wants.  Then insist on payment within a specific time.


It is also important to distinguish between your customers.  There are always customers who are reliable payers.  Don’t waste time with them.  Their previous record of prompt payments will give you cause to rely on them for future payments on time.  Rather have your collection facility focus on those customers who are not paying.


Don’t fall into the trap of sending interminable accounting documents and information to the debtor.  A shrewd and evasive debtor can drag this out for months.  Accept that there is only so much you can provide.  Once you’ve done that, the lines are drawn.  You either get paid or you don’t.  If not, don’t waste further time, take action on the basis of what you have.


  • Discounts and repayment terms


Another common tactic is for debtors to request discounts or repayment terms or even both.  The problem here is that if you refuse this type of request, the debtor inevitably believes you are being unreasonable and obstructive.  It is almost as if you owe the debtor money and not the other way around!  Sometimes this goes further in that the debtor now feels justified in not paying at all until you have at least come to your senses and conceded a discount.


The best approach here is to turn things around.  Often it is pragmatic and effective for improved cash flow to concede a discount.  Make it a small one though.  When requesting discounts debtors seldom specify how much they expect.  Also make the discount subject to immediate payment. In this way you can turn the debtor’s request around to your advantage.


Something similar can be achieved regarding a request for repayment terms.  Again if you flatly refuse, the debtor often takes the position that he / she has tried to settle with you but you are being unreasonable hence no payment whatsoever.


Often better to accept payment terms provided they are not ridiculously low.  However use the opportunity to secure your position.  Get the payment terms reduced to writing in the form of a proper acknowledgment of debt.  That document must entitle you to go straight to court in the event of a breach.  You should also get the personal suretyship of a director of the debtor if at all possible.  It is more than reasonable to ask for this added security in light of the debtor wanting to pay you off in instalments.


Then of course you must include interest.  The debtor has the benefit of “your money” and you have every reason to get paid interest.




Perhaps the most important point is for you to appreciate that your collections people may well be stuck in a rut with how they handle collecting money for your company. Many of their practices may come from better economic times.  If that is the case, your cash flow is going to be negatively affected.  Your approach to collecting your outstanding debt needs to move with prevailing economic conditions.  The above are a few methods many of our clients have found successful.

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The story starts with two school friends.  M and H met each other at the same technical High School in Johannesburg.  M developed a career for himself in industrial plastic piping for mining and industry.  He became interested in the concept of rehabilitating old steel pipes by inserting a plastic pipelining inside such pipes thereby extending their lifespan by some thirty years.

In fact the commercial feasibility of this concept became a reality for M when an opportunity arose with an existing gold mining company for him to fulfil this function on their behalf.  At that stage the process was novel in South Africa.

M accordingly looked further afield.  He went to the USA and linked up with a certain G who had already established a plastic pipelining process.  At M’s behest and expense G came to South Africa and spent quite some time here teaching M a process known as Sureline.  This process involved the use of a deformer machine to fold plastic piping into steel piping in a certain way, taping the folded pipe and then inflating same once it had been pulled through the steel pipe, thereby sealing the inside.

Due to certain welding peculiarities of the older pipes the process of inserting plastic pipe was complicated in this country.  M and G spent a considerable amount of time, effort and money in refining the Sureline process to the point where it worked effectively in South Africa.  A novel idea which arose from all of this work was to have the plastic pipe already laid out prior to its insertion into the steel pipe.  Remember that piping of several hundred meters sometimes up to a kilometre or more had to be lined, the procedure needed to be faultless to avoid the plastic pipe tearing, breaking or becoming stuck inside the older pipe.

M spent many millions of rand in getting the process right.  During the course of these endeavours he linked up with his old friend H who became not only an employee but a confidant and close associate.  Inevitably H was closely involved in perfecting the piping process and utilising same in practical terms.  H unavoidably picked up all of the methods and nuances of plastic-lining steel pipes.

Importantly no agreement in restraint of trade was ever entered into between M and H.  Also no confidentiality agreement was concluded between them.  It is not clear why M did not insist on H signing written agreements of this nature.  One would have thought that because of the amount of money and time as well as effort M spent in perfecting and implementing the piping process (to which H was very much a party) he would have insisted on these agreements to protect himself.  Perhaps due to their friendship and M’s evident trust in H this simply did not occur.

Unfortunately things went wrong between the two of them.  H stopped working for M and immediately started a competing business of his own known as Pexmart.  To make matters worse for M he soon discovered that H had tendered for the lucrative piping opportunity mentioned above with the gold mining company.  In fact it looked like H was about to be awarded the tender in preference to M as H’s price was cheaper.

M had to move quickly.  He brought an application to court to stop H using the pipelining process claiming that this process consisted of M’s confidential information and know-how.  M also sought to stop H from copying the machinery M used in the process.

This case was heard in the Pretoria High Court and M won.  H then appealed to the Supreme Court in Bloemfontein.  He claimed that M did not have any patent on his pipelining equipment.  There was no restraint of trade agreement nor even a confidentiality agreement binding him.  M’s pipelining process was out there for anyone to copy and use.  H said there is nothing unique about M’s pipelining techniques.  H had developed his own method in any event.  Furthermore, H said that when he worked with M he contributed substantially to M’s pipelining process.

M on the other hand contended that the pipelining process he used was revolutionary and new in South Africa.  M’s work with G which cost him a large amount of money led to the perfection of the relevant technique.  The details of how M’s pipelining process worked had been acquired over a long period of time with the application of much time, effort and of course cost.

M claimed that H’s alleged pipelining method which H said differed from M’s, could never work effectively.  It was a ruse by H to conceal the fact that he was simply utilising M’s method.  In summary M contended that H had taken everything he learned from M to set up Pexmart and steal the gold mining company opportunity from M.

The court was now faced with two different versions.  It seems the biggest problem for H was the fact that he did not get into the witness box and testify.  M on the other hand did.  It appears that M gave comprehensive evidence on the background leading up to the perfection of his pipelining process, how it worked and how he had educated H on all of these aspects.  To a large extent M’s evidence was uncontested.  The inevitable inference arising from the fact that H did not testify is that he had something to hide and M was right all along.

The court then looked at M’s version of events.  It found that M had indeed spent a considerable amount of time, effort and money in perfecting his pipelining process.  This could not be disputed.  H’s conduct in essentially hijacking M’s pipelining process and putting same forward as his own in tendering for competing work was found to be unlawful competition.  H had unlawfully used M’s confidential information and trade secrets.  It did not matter that M did not have restraint of trade or confidentiality agreements in place.  Our law of unlawful competition was available to M in these particular circumstances.  He successfully relied on the law of unlawful competition to protect his business against H copying M’s pipelining process.

This case is another example of how our courts have come to the assistance of someone in M’s position.  He trusted H with his trade secrets and knowhow without seeing the need for any written protection.  When H turned that trust against M to protect him.


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Most of us spend time in shopping centres.  Not only to shop but also to meet people and for entertainment as well as leisure.  Most of us will also have noticed the increasing number of empty shops.  The tell-tale signs of papered up shop windows are becoming common place.  Few of us stop to consider the stories behind the blocked out shop windows.  It is an interesting and unfortunately rather depressing tale.

The first completely covered shopping centre in South Africa was Hyde Park Corner, developed in 1969.  The first regional shopping centre was Sandton City which opened in 1973[1].  Since then shopping centres in South Africa have proliferated.  In the five year period between 2006 and 2010 South Africa recorded the highest boom period ever in terms of shopping centre development with the total amount of new retail space built over this period being an incredible 2.8 million square meters.  Presently South Africa has approximately 1 619 formal shopping centres ranging from 1 000 square meters up to almost 150 000 square meters.  These centres represent approximately 17 million square meters of an estimated 37 million square meters of all retail facilities[2].

This phenomenal growth in shopping centres has been spurred on by the profits developers and investors make from them.  These profits come from the rentals paid by centre tenants.  The rental income streams from centre tenants have provided centre owners and investors with attractive returns for years.

To protect the rental income stream, centre management relies on written lease agreements with tenants.  These are the real assets of any centre.  Over time the lease agreements have developed into comprehensive and detailed contracts.  Apart from large and reputable retailers or so-called “anchor tenants”, most other prospective tenants have little if any bargaining power with centre management.  The shopping centre lease agreement has come to contain clauses which aim to deprive the tenant of any ability to interrupt the rental stream.  For example, the tenant cannot withhold the payment of rent to the landlord in any circumstances whatsoever.  Also the tenant cannot have a claim against the landlord arising from the tenant’s occupation of the premises.  Most retail lease agreements like this are for periods of no less than five consecutive years.

In good economic times when most tenants earn sufficient income to comfortably cover monthly rentals the lease agreement is forgotten in the bottom drawer.  However when trading gets tough and tenants struggle to scrape together enough to pay the monthly rent, the terms of the lease agreement become the focus of attention.

In the difficult trading times tenants now face they seek a lot more assistance from the landlord.  Typically this would be in the form of wider and effective marketing of the centre, increased maintenance, renovation, upgrading, better management of the centre and a remission or reduction of rental and the like.

The landlord on the other hand needs to maximise its return and keep maintenance and renovation costs as well as marketing fees to a minimum.  Equally it has great difficulty in conceding remissions of rental or reductions of rental as this impacts on profits.

The stalemate has led to our courts becoming burdened with many cases of landlords suing tenants for eviction from centres, arrear rentals and damages.

In these cases the landlord, predictably, relies heavily on the terms and conditions of the lease.  The same document that the tenant eagerly signed in the rosy glow of securing anticipated profits from attractive premises has now turned into the proverbial ball and chain.

Almost without exception the landlord will have procured the personal suretyship of at least one director or shareholder of the tenant.  As such, both the tenant and its owner are liable to the landlord.

Commonly the legal action taken by the landlord against the tenant will be a claim for arrear rental, breach of the lease, cancellation, eviction and damages.  The damages would consist of the landlord’s claim for all of the rentals which remain owed by the tenant until the termination date of the lease.

What possible chance can the tenant have against this formidable legal barrage?  After all, the tenant signed away all of his rights when concluding the lease!

But is the tenant the only one to blame?  Often the tenant is unable to pay the rent because the shopping centre and its management are at fault.  The tenant claims that he has not received the proper use and benefit of the premises he is entitled to.  The centre has failed to market itself properly or at all, resulting in fewer shoppers.

Quite often the centre will have accepted lower rentals from the tenant in the past without complaint.  The centre agents told the tenant at the outset that the centre would provide him with all sorts of commercial or trading benefits which he relied on in signing the lease.  These turned out to be false.  The tenant accordingly claims damages for having spent money unnecessarily in fitting out his shop and for loss of profits.

These defences were raised in a recent case in the Pretoria High Court, being the matter of Billion Property Developments (Pty) Ltd v Rhino Log Furniture[3].  The tenant in this matter pleaded the defences referred to above.  The landlord took exception saying that the defences were invalid in law.  According to the landlord it was pointless for the case to proceed to trial as the tenant could not sustain defences of this nature.

The landlord’s point was, in general terms, that all of these defences could not be competently raised due to the terms of the lease agreement.  According to the landlord it had a discretion to market the centre in any way it pleased.  Because it accepted lower rentals in the past did not mean it could not insist on payment of full rental going forward.  The tenant had agreed that he signed the lease without having been induced into doing so by representations from the landlord or its agent.  The tenant could in any event not claim damages from the landlord due to the limitation of liability terms contained in the lease.

Interestingly the court took a softer stance on the tenant’s defences than the landlord would have liked.  The court gave the tenant the benefit of the doubt on several of its defences stating that the tenant should have the opportunity of presenting his defences at a trial in due course.

The court found that the tenant could allege a tacit term in the lease that he was entitled to receive the use and benefit he believed he had contracted for in respect of the premises.

The effect of this decision is to open up the possibility for tenants in circumstances similar to those of the tenant in this matter to defend themselves against the landlord’s seemingly unstoppable legal action.

Although the lease agreement contained every conceivable term to protect the continual payment of rent it was not beyond challenge in this case.  The tenant does have a voice.  He is entitled to challenge the landlord on issues like the way it markets the centre, whether the monthly rental amount is actually fair, whether the landlord wrongfully induced the tenant to conclude and whether the landlord is providing the tenant with proper use and benefit of the premises..

[1] Service Quality in a Landlord – Small Business Relationship in Shopping Centres by Cornelia Petronella Johanna Harmse April 2012, University of Pretoria (“the works”)

[2] Para 4.2, page 113 of the works

[3] Billiion Property Developments (Pty) Limited v Rhino Log Furniture & Lapas CC t/a Log Furniture & Another, Pretoria High Court, case number 51992/2016

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Helen has been involved in the legal field for many years and, although an admitted attorney, focuses her attention on the administration and management of our practice.

Due to her extensive experience and exposure to active legal practice, Helen is conversant with the ins and outs of legal practice and constitutes the backbone of our practice.

Helen is an animal lover and has a particular passion for Great Danes. She is very involved in animal rescue and at any one time has a few charitable projects on the go.

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Garry and his father, Bernard Hertzberg, are the founders of the firm.
Garry has presided as a Commissioner for the Small Claims Court Sandton/Randburg and has served as an Assessor appointed by the Law Society for the assessment of attorneys’ fees.

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