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31 Jan 2020

AMENDMENTS TO THE CAPE TOWN MUNICIPAL BY-LAWS NOW ALLOW 3 DWELLINGS ON AN ERF AND Airbnb-TYPE LETTING

The City of Cape Town has recently approved amendments to the Municipal Planning By-laws. These amendments were promulgated on 6 December 2019 and are effective from 3 February 2020. The amendments will allow for the construction of a third dwelling on a property that is zoned as Single Residential, and for short-term letting. Here is a summary of the main changes:

PERMISSION FOR A THIRD DWELLING

You might recall that a few years ago, the municipality gave us the right to build a second dwelling on a property that was zoned single residential. This permission has now been expanded to allow a third dwelling. This third dwelling will however only be allowed if there are enough municipal services in the area to support it. We believe that this will be determined when building plans are submitted for approval.

The change to the zoning regulations will however not create any automatic right to subdivide the erf, but once the additional dwelling is constructed it will be possible to register a sectional title scheme, if you wish to sell off any of the separate dwellings.

SHORT-TERM LETTING

A new provision will be enacted to allow for short-term letting from a house or flat for “transient guests”. These are guests staying for a period of 30 days or less. This amendment was influenced by the increase of online platforms such as Airbnb, and to promote small businesses. This is positive news for those of you who wanted to do short term letting but could not do so due to the municipal zoning restrictions.

Please note however that both of these changes to the zoning laws will not override the rules of a body corporate or a homeowners’ association, or restrictive conditions in a title deed. Accordingly, if any of these activities are prohibited by these rules or by restrictive title deed conditions, these prohibitions will continue to apply.

The 2020 Consolidated Municipal Planning By-law document containing all amendments which will be applicable from 3 February 2020 can be read or downloaded off of the City of Cape Town’s website.

Please contact us on info@miltons.law.za if you have any enquires regarding these amendments.

CHERYLEEN NAIDOO & DEON WELZ
MILTONS MATSEMELA
January 2020

08 Jan 2020

CHANGES TO THE PROCEDURE TO BE ADOPTED WHEN A TITLE DEED OR BOND HAS BEEN LOST – Updated January 2020

FURTHER DEVELOPMENTS WITH REGARD TO LOST AND DESTROYED DEEDS

In November last year we alerted you to the change in procedure that would be adopted when a title deed or bond has been lost or destroyed.

We were under the impression that as long as we still lodge the Application to replace the lost deed by 20 December (being the last day for lodgment last year), we would not be struck by this change. The Registrar is however interpreting the wording of the Regulation’s changes very narrowly. The changes state that a certified copy may not be “issued” until the advert has been placed, and this would commence as from 1 January 2020. A certified copy is obviously only “issued” after an Application is lodged, and because the Regulation states that it cannot be “issued” without this advert being placed, the Registrar’s view is that even if we lodged the Application last year, the advert’s still need to be placed, if the certified copy was not “issued” by 1 January 2020! The Deeds Office therefore ruled yesterday morning that they will reject all transfers that were lodged last year, which were accompanied by such an Application, where the certified copies had not yet been issued, and that the new procedure will have to now be followed. Below is the previous article for ease of reference.

This will now cause a delay in all of these transfers (by around 3 – 4 weeks) given the other internal procedures that we have to also follow.

CHANGES TO THE PROCEDURE TO BE ADOPTED WHEN A TITLE DEED OR BOND HAS BEEN LOST

As many of you will know, when an original title deed or mortgage bond has been lost or destroyed, we cannot attend to a transfer, bond registration or bond cancellation, unless the registered holder of the deed, has lodged a formal application with the relevant deeds office, to issue a certified copy of the deed that has been lost or destroyed.

At the end of January 2019 we published a Newsflash, after the deeds office announced an intention to change the current procedure in terms of which applications for certified copies of lost or destroyed deeds are to be made.  This new procedure would require that the affidavit in terms of which the application for a certified copy of a lost or destroyed deed is made, be signed in front of a Notary Public (instead of a Commissioner of Oath as per the current procedure), and that notice of one’s intention to apply for  a certified copy of a deed had to be advertised in the Government Gazette too!

Fortunately, this new procedure was never implemented.

However, Government has now published a Gazette which has introduced a different procedure, effective as from 1 January 2020.  In terms of this procedure, anyone who wishes to apply for a certified copy of a title deed or mortgage bond, must place an advert in any newspaper that circulates in the area where the property is situated, informing the general public of this intention, and allowing any person who wishes to inspect a copy of the title deed or mortgage bond, to do so, and/or to object, within 2 weeks of the advert being published.

In the case of a notarial bond, such advert must be placed in a newspaper that circulates in the area of the deeds office where such a bond has been registered.

Fortunately the application is still in the form of an affidavit to be signed in front of a Commissioner of Oath. The requirement to have such affidavit signed in front a Notary Public has luckily been done away with.

We are not yet entirely clear on the practical implementation of this new procedure by the deeds office, but we expect to receive a circular from the Chief Registrar of Deeds to provide clarity in this respect shortly, and we will advise as soon as such circular has been issued.

This change will certainly make the application for the lost deeds more expensive and it could also cause delays with the transfer or bond registration.  Finally, remember that if the property is bonded, the original title deed will be held by the bank and the bank will also have to consent to the application for a lost or destroyed deed.

It is therefore imperative that owners and agents establish as soon as possible whether the original title deed is available, so that if it is lost, we can start the process to obtain a replacement deed immediately.

We would recommend that this issue be resolved at the time of the signing of the mandate.

Miltons Matsemela Inc
Robert Krautkramer
12 November 2019

06 Jan 2020

Property Practitioners Act – Summary

What is the Property Practitioner Act?

It is a new piece of legislation which will replace the Estate Agency Affairs Act of 1976. Its main purpose is to establish the Property Practitioner Regulatory Authority, which will replace the Estate Agency Affairs Board; to regulate the affairs of all property practitioners; to allow for transformation in the property sector and to provide for consumer protection.

Although the Act has been signed into law, it has not commenced yet. The Act will commence on a date yet to be decided upon. I do not see this happening any time this year and if we are lucky, maybe middle to end of 2020. Regulations must still be published, the current Estate Agency Affairs Board needs to gear up; the Minister has to first make rules on what training requirements all the property practitioners who will now be joining the fray, need to undergo and the Minister must also publish a code of conduct. So much work still lies ahead before the Act can commence.

Who is all a Property Practitioner?

Any person (natural or legal) who in the ordinary course of business, for gain (i.e. against payment), holds out (i.e. this is his/her business), on behalf of another person:

    • auctions; rents; sells or exhibits for sale or purchase, property or a business;
    • manages property;
    • negotiates such an agreement;
    • canvasses for landlords/tenants/buyers or sellers of properties/businesses; or
    • collects or receives rental on behalf of another person;
    • acts as intermediary or facilitator in any of the above (neither are defined in the act but a google definition provides the following):
      • intermediary – a person who acts as a link between people in order to try and bring about an agreement;
      • facilitator: any activity that makes a social process easy or easier.
    • It also includes a home owners association which does any of the above, for gain; and
    • anyone employed by a property practitioner to do any of these things on his / her behalf; and
    • includes anyone who sells, or markets time share or fractional ownership (basically a fancy expression for time share!); and includes
  • anyone who is employed to manage / supervise the day-to-day business operations of a property practitioner (office manager); and also
  • anyone who arranges:
    • financing for a sale or lease;
    • bridging finance (i.e. where a seller wants to take an advance against the proceeds of his sale) or;
    • acts as a bond broker, (someone who helps a buyer apply for a loan with the banks)
    • except if either of these, fall within the definition of a “financial institution” under the Financial Services Board Act.
  • It includes directors of companies; members of CC’s and trustees of trusts, if the entity does any of the above; and also,
  • any attorney or person employed by an attorney who renders these services except if that person must hold an FFC with the Attorneys’ Fidelity Fund, and if this work forms part of the attorney’s normal practice.
  • Anyone may apply to the Minister for exemption (partially or entirely from the Act) for up to 3 years at a time.
  • I have read on social media that this definition can be interpreted to include developers. I respectfully disagree. The introductory part of the definition clearly requires that you do these things on behalf of another person, i.e. as agent/intermediary/facilitator/go-between – call it what you wish. If you are a developer selling off your own stock, whether as a company or private individual, it differs not one bit from any other private seller selling his/her own home. (Except for the fact that a developer is bound to provide certain warranties of workmanship but that is completely irrelevant for the sake of this legislation).

Transformation

  • The Act also focuses on transformation. A Transformation Fund is to be created within 6 months of when the PPRA is established. It will be funded by the Fidelity Fund; government grant; fees and fines paid by PPs; Investments; and monies donated or bequeathed to the PPRA. The funds are to be used to promote the interests of the historically disadvantaged, including providing for training and development and education of the general public.

How great is the need for transformation?

  • As at the end of the 2018 financial year, around 12% of all estate agencies; principal estate agents and full status agents, who were issued with FFCs, were people of colour. Around 88%, were white.
  • However, of all the intern estate agents, nearly 30% are people of colour. This indicates that transformation is well underway in the estate agency realm.
  • The Act also provides that once it commences, the Property Sector Transformation Charter which will apply to all PPs. Here is a link to see the actual document. https://bbbeecommission.co.za/wp-content/uploads/2017/12/Amended-Property-Sector-Codes-of-Good-Practice_1-1.pdf
  • In order to qualify for a fidelity fund certificate – without which a PP may trade (more of what that document means, later) – every property practitioner (meaning the firm), must be in possession of a BEE certificate. All this means is that the PP has undergone a verification process with a BEE auditing company, which will then rate you as being a level 1-8 (1 being the highest) contributor – or for that matter, a non-contributor. As long as you are certified, you can get an FFC.
  • In terms of the Act (as it reads presently – and this may of course change in due course) the only time that a PP will have to have a certain level of BEE certification, is if the PP wishes to do business with an organ of state. The Act only requires that a firm is BEE compliant in such an instance.
  • As such, business owners which are white owned, can all relax, unless they wish to tender for state contracts.

Fidelity Fund Certificates (FFC)

What is an FFC?

  • An FFC is a certificate which is issued to every PP. Without an FFC, a PP may not trade or be paid for any work done.
  • Currently, FFC’s are valid until 31 December each year which means agents have to renew them every year. Once the PPA commences they will be valid for 3 years, until 31 December of the year in which the FFC was approved.
  • If the firm is a company then all of its directors must also have one; if it is a CC, then all its members; if a partnership, its partners; and if a Trust, all the Trustees.

What is the point of an FFC?

  • The point of an FFC is to provide the consumer with protection against theft of money that has been entrusted to a PP, such as money meant to buy a house; rental income or rental deposits.
  • In terms of the new Act, once an FFC certificate is issued to a PP and should that PP then steal money which the PP held in trust then the consumer can claim this money back from the fidelity fund. All the consumer needs to do is lay a criminal charge and be sure that the PP had an FFC at the time of the theft.
  • This is a huge change to the current legislation because under the current Estate Agent Affairs Act, the consumer must first try to recover the funds from the PP him/herself, and can then only, claim from the fund. The consumer must first exhaust all available remedies (i.e. sue the PP; get a sheriff to try and attach and sell assets and even possibly sequestrate the PP) before one can claim money from the fund!
  • As such, this new process will make it much easier for the consumer to claim back stolen money. But you can only claim if the PP had an FFC!
  • As such seller; buyer; landlord or tenant, must always insist on seeing the PP’s FFC, which must be valid at the time of the transaction, before paying over one red cent!

Consequences of not having an FFC

  • If an entity has just one PP in its employ who does not have an FFC then the entity may not trade. Which means no other PP in its employ may work legally then either!
  • If a PP was involved in a transaction and did not have a valid FFC at the time of the transaction, then he/she may not claim commission.
  • If the consumer finds out that the PP did not have an FFC at the time of the transaction, then the consumer has 3 years within which to claim it back and if the PP does not pay it back immediately, he/she will be guilty of a criminal offence.
  • This is also a massive change from the current legal position. Currently, agents are also not entitled to be paid if they don’t have an FFC – but, if an agent does get paid, the seller cannot claim it back. That will become a thing of the past.
  • The Act also states that if a PP does receive payment when he/she did not have an FFC, then the PP is required to pay the commission to the fidelity fund.
  • However, (and this may be impossible to believe), but this is what the Act states, if the consumer then claims it back from the Fund, the Fund may pay whatever amount (if any) to the consumer which is “equitable in the circumstances”!
  • Once again, a reminder to all consumers – make sure your PP has a valid FFC!

The new position of the conveyancing attorney

  • A conveyancer (attorney who attends to the transfer of properties) may not pay remuneration to a PP unless the property practitioner has provided the conveyancer with a certified copy of an FFC, which was valid:
    • during the period, or on the date of the transaction to which such payment relates;

and

    • on the date of such payment.
  • This is once again, a massive change to the current position. At present, there is no legal duty on a conveyancer to check this. Once this Act commences, conveyancers will be compelled to check. If they don’t, and if a seller finds out afterwards, the seller can then claim this back from the conveyancer on the basis of professional negligence.

Updating records – PPs beware!

  • If your contact details change during the period of validity of your FFC, you must notify the PPRA within 14 days. i.e if you change from one agency to another you must alert the PPRA.
  • Not doing so does not invalidate your FFC, but it will be a criminal offence.

Mandatory time periods to issue FFCs

  • A very welcome change, which PPs will appreciate, is that the PPRA will have to consider any complete application for an FFC, within 30 working days, once the Act commences. The PPRA may “buy” itself an additional 20 working days if good grounds exist. But if, after the first 30 (or 50) working days, the PP has still not received his/her FFC, he/she may then make a written demand, for it to be issued within 10 working days.
  • Furthermore, if the Authority has failed to consider the application within 30 (or 50) working days, the application is deemed to have been approved.
    The Act also states that if a PP suffers damages due to the PPRA’s negligence, the PPRA can be held liable.

Disqualifications from having FFCs

The Act also tells us on what basis a PP may be disqualified from receiving or renewing an FFC. Here we have seen some interesting changes – some of which will no doubt be challenged in the Constitutional Court at some stage!

  • If you are not a South African citizen and if you do not lawfully reside in SA
  • Anyone who has at any time in the preceding five years:
    • been found guilty of contravening this Act, the EAAA, or any similar legislation anywhere in the world;
    • if, by reason of improper conduct, you have been dismissed from a position of trust (anywhere in the world it seems);
  • in the case of a company; CC or Trust, or Partnership, if any one of its directors / managers / members / Trustees or Partners has been found guilty of contravention of this Act or the EAAA, then the entity cannot get an FFC for as long as that person remains a director etc.
  • Anyone who has EVER, in any court in the world, been found
    • to have acted fraudulently, dishonestly, unprofessionally, dishonourably or in breach of a fiduciary duty, or
    • guilty of any offence, for which such person has been sentenced to imprisonment without the option of a fine (regardless of the nature of the offence or the duration of the imprisonment), or
    • (in any tribunal, let alone court) guilty of unfairly discriminating against someone on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
    • In these 3 instances, it is a life-long ban – which is outrageous! You could become a brain surgeon; lawyer or parliamentarian – but you cannot help people sell houses or obtain loans! Makes no sense…
  • Anyone of unsound mind
  • An unrehabilitated insolvent
  • Anyone who is not in possession of a valid tax clearance certificate
  • Anyone who is not in possession of a valid BEE certificate (please note, you need only have a certificate – you need not have a certain level of BEE compliance, unless you wish to tender for a contract with an organ of state)
  • Anyone that does not comply with the prescribed standard of training.

Displaying FFCs

  • FFCs must be displayed at every place of business – this could include at a show house.
  • All letterheads and marketing material must confirm that the PP has an FFC
  • All agreements relating to property transactions must guarantee the validity of an FFC

Record keeping

Here again we see some odd developments!

  • Records to be kept for 5 years (hard copies or digital) of:
  • all documents exchanged with the PPRA;
  • any agreements incidental to the carrying on the business of a property practitioner;
  • any document relating to the financing, sale, purchase or lease of a property;
  • all financial records;

(and here are the odd ones)

  • all correspondence with his, her or its employer or franchisor;
  • any advertising or marketing material;
  • all the PP’s assets and liabilities;

Candidate Property Practitioners

(i.e. PPs who have not yet met the required qualifications and do not have a full status FFC)

  • Are not entitled to draft or complete any document or clause in a mandate, a deed of sale or a lease.
  • A Property Practitioner who allows this to happen will not be entitled to be paid for their services.
  • This is regardless of whether or not the Property Practitioner was aware of the contravention at the time.

Limitation on relationships with other service providers

(An exceptionally welcome change, if ever there was one in South African legislative history!)

  • A PP may not enter into any arrangement whereby a consumer is obliged or encouraged to use a particular service provider – including the services of an attorney. Although there is no definition of the word “arrangement”, it most probably means a “financial incentive”. This means that the PP may not receive commission from mortgage bond originators; bridging companies; compliance companies, or attorneys, in return for which, the PP recommends that person’s services to a seller for example.
  • It is unfortunately rife in the estate agency world, for some estate agents to literally demand “kick-backs” from attorneys, before they are willing to recommend that attorney to a seller (where the seller has no relationship with an attorney of his own), or, for some attorneys to offer incentives (bribes) to estate agents, in return for their support.
  • Attorneys are forbidden from “buying work”; soliciting for business, or “touting”. Their profession requires that they obtain business through word of mouth and conservative marketing efforts – not through the sharing of professional fees or paying for support. This Act now mirrors this prohibition.
  • In other words, if a PP who sells a house recommends a conveyancer because the conveyancer pays the agent’s office rent; or “desk fees”, or petrol money; or pays the PP a percentage of the transfer fee, or anything similar, it will be a criminal offence.
  • And furthermore, if a consumer finds out that the PP was involved in such an arrangement, the PP must repay any such remuneration, together with interest within 30 days if requested to, else that is also a criminal offence.

Compliance Certificates

  • A PP may not in any way offer or receive financial or other incentive to influence a compliance certificate service provider. A property practitioner who does so, or a compliance person who accepts any such incentive is guilty of an offence.

Mandatory Disclosure forms

  • The Act provides that a PP must not accept a mandate unless the seller or lessor has provided a fully completed and signed mandatory disclosure in the prescribed form. (The form must still be published.)
  • This form must then be presented to any potential buyer or tenant as part of the agreement.
  • If no such disclosure accompanies the sale or lease, it must be interpreted as if no defects or deficiencies of the property were disclosed to the purchaser.
  • A PP who fails to comply with this may be held liable by an affected consumer.

What exactly does this mean?

  • Unlike some reports in the media, it does not mean, that a buyer can now hold you as the PP liable for any and all defects that are discovered after transfer! All it means is that if you wish to argue that you DID disclose a defect, but this was not contained in a Condition Report, the law will presume that you did not disclose it.
  • This clause merely issues a stern warning to PPs that if you sell or rent out a property without such a form there will be a statutory presumption that the buyer/tenant was not advised of any defects.
  • If a PP wants to however allege disclosures, he will have to prove it beyond a reasonable doubt – not an easy thing if the law presumes against you!
  • The main purpose of this document is therefore to protect PPs.
  • If you want to market a property without such a form, say because the seller refuses to complete it as he hasn’t set foot on the house for a long time, then you must insist that the seller provides you with an indemnity and, you must provide the buyer/tenant with a blank disclosure, with a line drawn through it, marked “SELLER/LANDLORD refuses to complete”!
  • And above all, whatever you do tell a buyer or tenant, make sure you record this in writing before an offer is made!

In terms of the Act, a PP will owe a buyer and a seller (probably also intended to include a landlord and tenant) a “duty of care”. What exactly does this mean?

  • In layman’s terms: A PP has a legal duty to act with reasonable care, skill and diligence. This means that he/ she must at all times take reasonable steps to ensure that a consumer does not suffer damages due to an oversight on the PP’s behalf, under circumstances, when it was not only reasonably foreseeable that such conduct could result in damages, but where it was also reasonably avoidable. A duty of care thus means that a PP must for example:
    • explain all the material terms of a contract to ensure that his client understand each and every term;
    • ensure that the buyer or seller’s true intention is reflected in the contract and that the words use are clear, accurate and easy to understand;
    • tell the buyer/tenant everything that he/she either actually knows about a property and which could be of importance to the buyer/tenant, or, which he/she could reasonably be expected to know about the property. This will depend entirely on the circumstances – i.e.
      • have you at least attempted to ask the seller/landlord whether there are any hidden defects that he/she knows about?
      • what does your client intend to do with the property – have you determined whether the property is zoned for its intended use?
      • have you enquired about the existence of approved building plans?
      • have you made the conduct rules available if you are selling in a sectional title scheme, or of the constitution, if selling in a home owner’s association?
      • have you determined whether the seller actually has exclusive use or just ordinary use over a parking bay in a sectional scheme?
      • It also means that you should restrict your opinions to what you actually know, and not what you might presume, and never express an opinion if you are not qualified to give one. For example, do not attempt to interpret title deed conditions or value a unique property, unless you have the experience to back it.
06 Jan 2020

Property Sales and Trusts: Demand Proof of Trustee Authority

 

“If you want to make your house easy to sell, make it easy to buy” (Anon)

Selling property to a trust comes with a particular risk, and it’s one that – although easily avoidable – still seems to catch sellers unawares on a regular basis.

Not checking that the trustee/s signing the offer to purchase/deed of sale are fully authorised to do so could leave you with no sale at all. We illustrate the downsides of not checking for trustee authority by discussing a recent Supreme Court of Appeal judgment in which a seller’s R3m claim came to naught, because only one of two trustees had signed the sale agreement for the buyer.

We end off asking whether in such a case you can hold the unauthorised trustee personally liable for damages.

You are overjoyed at receiving a good offer for your property – not easily achieved in these hard times and of course you certainly don’t want to do anything to jeopardise the sale.

But perhaps do that little bit extra homework before accepting the offer if it comes from a trust. The pitfall here – and it’s one that perennially takes sellers by surprise – is that the trustee/s signing the offer to purchase/sale agreement must have the necessary authority to do so. Drop the ball on that one and you will find yourself without any sale at all.

As a seller learned to its cost recently in the Supreme Court of Appeal (SCA)…

For want of a second signature the seller goes down R3m

  • In 2013 a company sold to a trust for R1.45m a “real right of extension” in a sectional title development (a right in this case to build on common property).
  • An agreement to sell a “real” property right of that type must, as with a standard property sale, be in writing and signed by both seller and buyer (or their authorised agents) to be valid.
  • The seller’s problem here was that only one of the trustees signed the sale agreement. The other trustee refused to sign, and in 2017 the seller found itself trying to convince the High Court to order the trust to pay it the R1.45m plus interest (by then a total just shy of R2m), alternatively to order the trustee who signed the deal to pay up personally in return for taking transfer into his own name.
  • The High Court however pointed out that where a trust has more than one trustee, they must act jointly, and a property sale agreement needs the signatures of all the trustees. One trustee signing alone would be regarded as an agent and would need either general authorisation in the trust deed or written authorisation to sign the particular agreement. Otherwise, as in this case, the signing trustee acted without authority and the sale was void.
  • Defeated in the High Court, the seller appealed to the SCA, abandoning its claim against the trust itself and now trying only to hold the signatory trustee liable in his personal capacity.
  • Its argument was that, despite the invalidity of the sale, the trustee was still liable – in his personal capacity – to pay and take transfer as he was guilty of breaching the clause (standard in property sale agreements involving corporates and trusts) that he “warrants and binds himself in his personal capacity by virtue of his signature hereto … that he is duly authorised to enter into this agreement on behalf of the company, close corporation or trust”.
  • No claim there, held the SCA, commenting that “The ingenuity of this argument is surpassed only by its lack of substance … what [the seller] is essentially seeking is specific performance of a void and invalid contract against the person who signed that contract but was not a party to it – this on the basis that if he’d had the authority to sign, which he had not, the property would have been sold to another. This merely had to be stated to be rejected.” This appeal, said the Court, was doomed to fail.
  • The end result – six years down the line the seller loses its claim (no doubt over the R3m mark including interest by now) and its legal bill will be a hefty one.

Could you sue the trustee personally for damages?

“Theoretically”, said the SCA, the signing trustee could be held liable to the seller for damages flowing from his breach of warranty, and that is of course a strong warning to those signing for trusts and companies – make 100% sure that you have full authority to do so!

But, said the Court, the seller in this case didn’t formulate its claim as a damages claim against the trustee personally and even it had, it would have had to provide evidence as to what damages it had actually suffered.

Indeed proving damages in a case like this is never going to be easy – the seller would have been much better off insisting upfront on proof of the trustee’s authority to sign alone.

As always, get professional advice before you sign anything.

03 Jan 2020

Visiting South Africa with Kids Just Became Easier – Here’s What You Need to Know

“We’re all going on a summer holiday…” (Cliff Richard)

South Africa is a great holiday destination for families, and a recent announcement by government that it has eased the requirements for children entering the country has been widely welcomed.

We discuss the documentary requirements which have applied until now, the extent to which they have been waived, and the restricted application of that waiver.

We end off with a useful Department of Home Affairs table which conveniently and clearly sets out exactly what documents are required to enter South Africa for both South African children and for foreign children in a variety of circumstances.

With the Festive Season (and our Summer Holidays!) well and truly upon us, you may be inviting family or friends to visit you from overseas with their children, or perhaps you are a foreigner planning a family trip to South Africa. Either way here’s some good news in the form of a welcome concession from government in regard to the documentation you will need to produce on entry.

In a nutshell foreign children until now have only been able to enter the country with unabridged birth certificates and consent letters. That requirement was waived – for accompanied children only (check the full details in the table below) – from 8 November 2019.

The Department of Home Affairs (DHA) says it has communicated this very welcome new development to all role players, most importantly to the immigration officials at ports of entry who are tasked with enforcing the rules, but if you do happen to have documentation handy it can’t hurt to bring it along in case of any queries. If you need visas to visit you will anyway have to produce the documents when applying.

South African children (and unaccompanied foreign children) must still provide a list of required supporting documents – see below.

Note that the above is just a summary – it is extremely important that you check the DHA table below for full details, and that you ask your lawyer for help if you think any exemptions may apply, if you have any difficulty in understanding what is required, or if you cannot get the necessary documentation together.

DOCUMENTS REQUIRED FOR CHILDREN TRAVELLING THROUGH A PORT OF ENTRY OF THE REPUBLIC

02 Jan 2020

All Companies: Prepare for the Mandatory New CIPC Compliance Checklist

Having your company deregistered by the CIPC will have serious consequences for your company, for your business, and for you personally – so you should take the new “compliance checklist” requirement seriously.

Until you complete the checklist you won’t be able to complete your company’s annual return, and then your problems will really start because CIPC will decide that you have gone out of business and deregister the company.

Voluntary until now, completing the checklist will be mandatory for all companies and close corporations from 1 January 2020. Your first step will be to establish when your next annual return will become due …

The CIPC (Companies and Intellectual Property Commission) has announced that its new “compliance checklist” requirement, voluntary until now, becomes mandatory for all companies and close corporations from 1 January 2020.

You must complete the checklist before submitting your annual return. So firstly check when your due date for the annual return is – for companies you will have 30 business days from the day after its date of registration, whereas for close corporations you will have the two months from the first day of the registration month until the end of the following month.

Then log on to the CIPC website and find what CIPC calls its “new user-friendly service” under “e-Services for Customers”.

If you run into problems take professional advice immediately. You really don’t want to drop the ball on this! If you can’t complete the compliance checklist, you can’t submit your annual return, which will put your company at risk of deregistration because CIPC assumes that your company has stopped doing business.

Deregistration means your company ceases to exist, with drastic negative consequences for your company, for its business operations, and for you personally.

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