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30 Aug 2018

CHANGES TO WATER BY LAW ARE NOW LAW!

Dear all,

Several weeks ago we reported on certain decisions that were passed at a Council meet at the City of Cape Town (COCT), which sought to make amendments to the Water By Law Act which only applies to properties in the COCT. The changes to the by-law were published in the Government Gazette on 20 July 2018.

This is therefore now law.

Click HERE to view the link

As a reminder, these included the following:

  • Landlords must now keep record of consumption for each residential unit in a multi-tenant complex/block of flats and inform the City if contraventions of water restrictions are taking place – this means water meters will have to now be installed for every unit.
  • No irrigation of gardens is allowed between 09:00 and 18:00, including from boreholes and well-points. Previously no irrigation was allowed 10:00 and 16:00 and did not include borehole water.
  • Toilets are now only allowed a maximum 6 litre cistern volume (down from 9 litres), and water from shower heads must flow out at no more than 7 litres per minute (down from 9.5 litres/minute). Only when it comes time to replace toilets and showerheads due to age or malfunction must new parts that conform with the revised standards be fitted
  • All pools must be fitted with a cover to avoid evaporation when not in use
  • All automatic flushing cisterns fitted to urinals must however be replaced immediately with either manually operated systems or properly maintained non-manual apparatus which causes the flushing device to operate only after each use.
  • A prepayment meter is now an option, in addition to the Water Meter Device, as a Council water meter.

In addition we have noticed from the changes that well points and wells must now also be registered not just boreholes, and you actually need to apply for consent from the Department of Water and Sanitation in terms of section 39 of the National Water Act,1998 (Act 36 of 1998) if you want to sink a well; well point or borehole.

Failure to comply with this water by-law can land you in jail for up to FIVE years and you can be fined!

Kind Regards,
Robert Krautkrämer

29 Aug 2018

CASE LAW UPDATE – ESTATE AGENTS MANDATES

It is an estate agent’s sole mandate agreement binding if it is signed by only one spouse married in community of property? This is the question that was finally decided by the Western Cape High Court on Tuesday, 21 August 2018 in the matter of Blue Platinum Ventures 43 (Pty) Ltd v S & L Mesecke (Case No A 175/18).

In this matter Mr Mesecke had signed a sole mandate in favour of Rawson Properties at a time when he was getting divorced from his wife, to whom he was married in community of property. His wife did not sign the mandate. Rawson Properties introduced a willing and able purchaser during the period of the mandate for the full asking price, but the offer was not accepted. The property was then sold to a purchaser introduced by another agency. Rawson Properties sued for commission.

Mesecke’s attorneys argued as follows:

  • In terms of the Matrimonial Property Act, a spouse married in community of property, acting alone, cannot bind the joint estate to any contract in terms of which immovable property forming part of the joint estate is sold or “alienated”. For such a contract to be binding, the written consent of the other spouse is also required.
  • The granting of a sole mandate to an agent to market the property is an act so inextricably linked to the ultimate sale or “alienation” of the property that it should be included under the banner of contracts requiring the consent of both spouses.
  • Because Mrs Mesecke did not sign the mandate agreement, it was not enforceable against the joint estate.

In deciding the matter, the judge noted that the section of the Matrimonial Property Act that Mesecke’s attorneys relied on, prohibited acts by spouses acting alone, which resulted in their joint estate losing real rights, such as property rights. He noted that the contract of mandate conferred only personal rights upon the parties, i.e the right to compel performance and the right to receive payment. In terms of the mandate, the estate agent was never given the power to conclude the sale agreement on behalf of the sellers.

He accordingly made a clear distinction between the estate agent’s mandate and the deed of sale that might have resulted. He therefore found in favour of Rawson Properties and held that the mandate was valid and enforceable against Mr and Mrs Mesecke. Rawson Properties were therefore entitled to be paid their commission.

We are happy that this area of the law has now been conclusively decided and we are proud of Liz Casey, and the litigation department at Miltons Matsemela, for their efforts in bringing about a successful conclusion to the matter.

Deon Welz
August 2018

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