I am desperately trying to find Legal Ad...

Asked by Alocin on 28-08-2020 17:14:26
Question posted in the General Law category relating to KwaZulu-Natal

I am desperately trying to find Legal Advice about an Apprentice Schedule that I signed stating that I have to pay the complete course fees even if my daughter, (the apprentice) leaves before completion of the 2 year course. She has been there for a year, and I have paid half of the amount due - R25 000.00. My daughter suffers from Common Variable Immunodeficiency (CVID), which was explained before I signed the Schedule. During the outbreak of the COVID-19 Pandemic, my daughter contracted the coronavirus, and was seriously ill. She won't be able to return to complete her apprenticeship, and I have been told that I owe the outstanding R25 000.00. I have read about "force majeure" and various other legal articles about how this pandemic changes some aspects of contractual agreements between employer and employee when the employee is unable to carry on working? I don't know what my rights are, and what I can do in this situation? Many thanks for your time in relation to the above mentioned. I look forward to hearing from you. Kind regards, Nicola Marais

Further information relating to Question:

I require your legal clarification to the situation mentioned above. I need to provide my daughter's Employer with a Legal Letter detailing the facts surrounding this contract I signed, not knowing at the time that there was going to be a pandemic breakout in the middle of her apprenticeship. There is no clause in this contract that includes, "should there be an Act of God happen"? I need to know what my rights are in the event of this situation? Is every contract treated differently during this pandemic? Do I need to send you a copy of the contract? Do you think that you will be able to help me with contract law? If not, could you please advise me of somebody who could? I have to know what steps to take firstly, be advised on this specific situation. What do I do if he gets his lawyer involved? Will it be an expensive case going forward? What do you think my chances are of being bound to pay the remainder of the fees associated with our signed 'Apprentice Schedule'? I do hope you are able to assist me going forward. Thank you once again for taking the time to read through the above mentioned, and offer your feedback. Kind regards, Nicola Marais

Answer to the Question

Posted by Att. Patrick on 29-08-2020 22:57:28

Hi there Nicola and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

You need to understand exactly what force majeure is because at the moment everyone is throwing around the term like they know what it means thinking that it can get everyone out of every contract - when it can't necessarily do that. 

Force majeure is a common law concept (it's always been around) which basically says that if there is an Act of God (or such like) which stops Person A from being able to perform his/her obligation in terms of a contract, Person A can hardly expect Person B from performing his/her obligations, and accordingly Person B can (likely, but not always) be excused from their obligations.

For example, Person A is the landlord. He rents out a house to Person B. The house burns down. That is an Act of God which now prevents Person A from performing his obligations in terms of a lease agreement. The obligation is to provide Person B (the tenant) with the use and enjoyment of the house. Because Person A can't perform in terms of the lease, Person B can't be forced to perform either by paying rent. If the time period for Person A not being able to perform extends for a long period of time, Person B could cancel the contract. If Person A re-builds the house within a month or two, he can then demand that Person B continues with the contract and pay rent again. 

Turning to your situation. Your daughter's contract says that the employer will pay for her course fees, and then she must work for them, but if she leaves the work before 2 years is up then she (you) must repay the course fees to the employer. 

So, in order for her to demand that she must be released from that obligation, she needs to use the force majeure concept to argue that there is an obligation owed to her by the employer which they are not performing, and accordingly the employer's failure to perform the obligation (whatever it is ...) means that she does not need to perform her obligation. Then, if the employer's failure continues for an extended period, then she could cancel the agreement. 

So, WHAT obligation is the employer not performing?

You'll see that nowhere above do I mention anything about your daughter being ill has anything to do with force majeure or you being able to get out of the obligation to repay the course fees.

If your daughter is ill, and can't return to work, then the employer would be released from their obligation to pay her wages/salary. It does not release her (or you) from your obligation to repay her course fees. 

This happens more often than you think (not the covid reason) that people have companies pay for their studies and then for some reason or another, they can't continue and the work demands that they repay the course fees. 

I honestly don't think that force majeure applies in this situation, and I don't think that it will assist you. In my view, you should try to negotiate a repayment of the balance of the course fees over 25 months, or something like that.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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