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06 Dec 2017

SPEEDING FINES IN GATED COMMUNITIES – ARE THEY LEGAL? – ATTENTION ALL TRUSTEES AND MEMBERS OF GATED COMMUNITIES (SECURITY ESTATES)

These facts are from a KZN High Court judgment that went on appeal.

Mr Singh lived on Mount Edgecombe Estate. By virtue of his ownership, he is obliged to be a member of the Estate which is governed by a non-profit Association, whose obligations and functions are in turn governed by a Memorandum of Incorporation. (Very much like a Home Owner’s Association which is governed by a Constitution). In 2013 his daughter was issued with three speeding fines. These fines were issued in accordance with conduct rules.

This resulted in a number of unpleasant consequences for Mr Singh and his family, when he failed to pay the fines! He then challenged the speed fine system on the basis that the Association was purporting to carry out the functions of traffic officers as defined in the National Road Traffic Act, 93 of 1996 (NRTA) on the roads within the estate, given that they are public roads. (It is established law that despite being within a fence and appearing to be ‘private’, such roads are in fact public roads, due to the definition thereof in the NRTA. As such they fall within the jurisdiction of the NRTA.

After analyzing certain portions of the NRTA; the Constitution of South Africa Act, and the Criminal Procedure Act 51 of 1977 (the CPA), the court held that only the Minister may decide on speeding limits; only the MEC may prescribe how speeding fine signage is to be made visible, and that only “peace officers”, as defined in the CPA, (which includes traffic officers as defined in the NRTA) are permitted to issue written notifications (fines) to a person caught speeding, because, this notice sets out the amount of the fine which a court is likely to impose upon him or her – and not a private body. (After all, by law, a speeding violation could even carry a prison sentence! Would it not be funny to see HOA’s trying to impose such a conduct rule! Why limit it to a fine?)

It is established law that the relationship between a home owner in such an estate, and the governing body, is regulated by law of contract – the contract in this case, being the MOI and conduct rules. On this basis, the Association argued that its power to control and direct traffic on the public roads is governed by its own rules and is not linked to any statutory provision. The problem which this argument faced is that the legislation which the court analysed, clearly states that private bodies who do wish to play “cops and robbers” are obliged to first seek and obtain permission from the authorities to enforce speeding limits and rules of the road, in the absence of having “peace officers” on their payroll.

In granting such permission the authorities concerned would be entitled to also impose such conditions as they may consider necessary in the circumstances.

It was common cause that the Association had in fact not applied for nor ever received such permission at any stage – and for this reason the court held that the conduct rules relating to the limitation of speed and the imposition of a fine, are illegal, until and unless consent was obtained by the Association, from the authorities. In this case the court however suspended the illegality for 12 months until the Association could obtain the required consents, and in order to not allow all the owners in the Estate to be tempted to suddenly become racing drivers!

28 Nov 2017

It’s Wedding Season! Here’s Why You Need an ANC (Whether You Marry Here or Overseas)

“He was a dreamer, a thinker, a speculative philosopher… or, as his wife would have it, an idiot” (Douglas Adams)

Note: Although by way of example we explore below the “international wedding” scenario, even if you are South Africans marrying in South Africa you need an ANC. Read on…

The Rand’s weakness notwithstanding, many couples still plan their dream weddings overseas. Likewise, many couples living overseas come back to South Africa to marry. If you are one of them, ask your lawyer before you get married for advice on which country’s laws will apply to your marriage.

Why get advice?

In South Africa, our default marital regime is marriage “in community of property”, and for many couples that is the worst option. You may well be better off opting rather for the “out of community” option (with or without “accrual”). The point is to make an informed choice rather than drift blindly into the default regime.

Don’t assume that you will be married out of community of property if your marriage takes place in a country where “out of community” is the default. And don’t assume that it’s your nationality/citizenship that counts.

Not so! No matter where you tie the knot and no matter what your citizenship is, what counts is where the husband is domiciled at the time of the marriage.

The difficulty – determining domicile

So you must figure out where the husband is domiciled at the time of marriage – how do you do that?

“A domicile of choice”, says our law “shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.” In lay terms, that’s where he considers his “home” to be, where he lives and intends to remain permanently. Note that in law you must be domiciled somewhere (even if you think you aren’t), and you can only be domiciled in one country at a time. In other words, you can be stateless but not without a domicile, and you can hold dual citizenship but not dual domicile.

There are two main grey areas here –

  1. The “intention” bit. What if you have recently moved to South Africa? Or if you are a foreign national living in South Africa? A South African working overseas for a year or two? Or if you have plans to emigrate in the future?
    • There’s a lot of potential for uncertainty and dispute there, and the problem is that in doubt it’s a court that will have to decide. It’s difficult enough at the best of times to decide what another person’s mental “intention” is, and remember that here we’re talking about intention at the time of the marriage. Years (in some cases decades) down the line, imagine the difficulty faced by the poor judge tasked with that one! There have been cases like that and they’ve been messy.
  2. The “husband” bit. Referring to only “the husband” is discriminatory and almost certainly unconstitutional, and in any event with same-sex unions which partner’s domicile are we looking at? Until parliament sorts that one out with new legislation, uncertainty will reign.

The remedy – avoid all doubt with an ANC

Fortunately, there’s an easy way to avoid all that doubt and potential for dispute, delay and cost.

Simply have your lawyer – before you marry – draw up an ante-nuptial contract (ANC) tailored to meet your particular needs. Then sign it. Then fly away and enjoy your wedding secure in the knowledge that all the annoying (but critical) little legalities have been put to bed!

28 Nov 2017

Selling Property this Festive Season? 3 Tips for a Smooth Transfer!

The Festive Season can be a great time to sell property, and to buy it. Warm weather, sunny gardens and bright rooms, lots of holidaying visitors, and more time on your hands generally all help to stimulate the property market.

Just bear in mind that, Summer Holidays or not, whether you are selling a property or buying one, you want the whole process to be handled professionally and smoothly, with as little delay as possible. After all, both of you are dealing with what is probably one of your most important assets.

Here are some tips to help you achieve that smooth and hassle-free transfer –

  • Choose the right conveyancer

Central to ensuring that all goes well is the choice of which conveyancing attorney you nominate to carry out the specialist task of transferring the property from the Seller’s name to the Buyer’s.

Choosing a conveyancer is one of the things that is technically up for negotiation, but as a seller, you should always insist on making the choice.

Why? You carry more risk than the buyer who, having to raise the purchase price within an agreed time period, is more likely to default or cause delay in the process than you are. Moreover it is your asset – your house – at stake, so it makes sense to have your own attorney directing the process and ensuring that the purchase price is fully paid or secured.

The fact that the buyer invariably pays the costs of transfer isn’t relevant here. A nervous buyer can always appoint his or her own attorney to keep a watching brief on the transfer, although – unless and until a dispute arises – that really shouldn’t be necessary seeing that conveyancers have a professional duty of care to act fairly to both parties.

Bottom line – as a seller, choose an attorney you can trust to act with speed and integrity. And don’t be persuaded by anyone to give up your right to do the nominating!

  • Avoid any possible uncertainty

Clearly record your choice of attorney in your written sale agreement. Otherwise you could be opening the door to dispute.

That’s true for all provinces but is a particular risk in KZN where historically the buyer had the choice if the agreement was silent on the matter (the current legal position on that is uncertain).

  • Bring your attorney into the picture from Day One

Sellers in particular should remember this basic principle – agree to nothing (verbally or in writing) until your lawyer has checked it out for you! A lot can go wrong with property sales, from your initial choice of who to appoint to find a buyer for you, through to the wording and signing of the agreement of sale itself.

Our law reports are bursting at the seams with bitter, expensive and disruptive legal disputes which could have been avoided had the parties sought legal assistance before putting pen to paper.

28 Nov 2017

Employers and Employees: How to Handle Sexual Harassment at Work

“…there is a new understanding and appreciation of the prevalence of sexual harassment in the workplace and of its devastating effects on the victim. It has become, in effect, a systemic and recurring harm”…“It is the kind of conduct that is a scourge in the workplace, and must be rooted out of existence.” (Extracts from judgments below)

Both employers and employees should know how to handle any form of sexual harassment in the workplace. With the slew of year-end office parties once again upon us, now’s a good time to remind ourselves that, as the “Harvey Weinstein” and other high profile allegations (and the resulting #MeToo Twitter campaigns) have illustrated, victims of powerful abusers can find it incredibly difficult to report such cases and to find redress.

The good news is that our laws against such harassment are strong, and they are rigorously enforced by our courts.
We’ll concentrate on workplace harassment in this article, but remember that you also have strong rights outside the employment sphere. Don’t suffer in silence!

What exactly is “sexual harassment”?

In terms of the “Amended Code Of Good Practice On The Handling Of Sexual Harassment Cases In The Workplace” (“the Code”) it is a prohibited form of unfair discrimination that “… is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:

  • Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
  • Whether the sexual conduct was unwelcome;
  • The nature and extent of the sexual conduct; and
  • The impact of the sexual conduct on the employee.”

Sexual harassment can be physical, verbal or non-verbal, it can involve victimisation, intimidation or favouritism, it can be a course of conduct or a single incident, the parties can be of any gender – in fact the definitions are so wide that, if you are subjected to any sexual conduct that is (a) unwelcome and (b) has a negative impact on you, it probably qualifies.

As a victim, what can you do about it?

Firstly, the Code allows you to communicate that conduct is unwelcome in non-verbal ways, like simply walking away or not responding to the harassment. It’s up to the perpetrator to get the message.

Or you can start with a direct but informal approach to explain that the behaviour is unwelcome and you would like it to stop. If you have difficulty in doing so yourself you can make the approach through someone else, perhaps a colleague, superior, counsellor, friend or family member. Your name can be kept out of it at this stage, and the approach can be a general one, explaining for example “that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable and interfere with their work.”

Or you can make a formal complaint, and then your employer is obliged to act. The initial report can again come from you or from someone else. Employers should have sexual harassment policies and procedures in place, providing amongst other things that “It will be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.”

That of course makes it sound a lot easier than it often is in practice, but if your employer fails to protect you or to take appropriate disciplinary action against the perpetrator, or if in any other way your employer’s procedures don’t result in a satisfactory resolution, you can approach the CCMA for assistance.

Your employer must also ensure confidentiality of all complaints (only to the extent possible of course – your identity is integral to the process itself), and assist you where possible with advice, assistance, counselling, additional sick leave and so on as appropriate.

Can you claim damages? 2 cases illustrate

Firstly, you may well have a damages claim against both the perpetrator and employer. Take for example the High Court case of a municipal employee who claimed R4m for a sexual assault and molestation in which her immediate superior had attempted to insert his tongue into her mouth and then later addressed her with words “bearing sexual connotations”. She suffered post-traumatic stress disorder and eventually had to resign her post. The Court ordered that both the perpetrator and employer were liable for whatever damages she could prove.

You could also have a claim against your employer for failing to prevent unfair discrimination in terms of our labour laws. Thus an insurance clerk, subjected to ongoing sexual harassment by a senior manager, was awarded R250,000 damages by the Labour Appeal Court after her employer’s failure to take action against the manager made her work environment intolerable and led to her resignation.

Warning off a sex pest with dismissal; 3 examples to quote

If you have any difficulty in convincing a sex pest to desist, perhaps draw their attention to both the damages cases mentioned above and to one of the many court decisions upholding the penalty of dismissal from employment. Some good examples –

  1. A divisional director dismissed for subjecting a subordinate to harassment in the form of sexual innuendo (verbal and written), hugging and kissing,
  2. A senior lecturer dismissed for sexually molesting students and offering them extra marks in exchange for sexual favours (relevant because the power differential is similar to that in any employee/superior relationship),
  3. A company manager who made verbal sexual advances to another company’s employee at a lodge in rural Botswana.

His words “do you want a lover tonight” and “come to my room if you change your mind” were initially held by the Labour Court to be just “trying his luck” and “inappropriate sexual attention” rather than harassment. But the Labour Appeal Court disagreed and confirmed the manager’s dismissal, holding that “the unwelcome and inappropriate advances were directed by [the manager] at a young woman close to 25 years his junior whose employment had placed her alone in his company … Underlying such advances, lay a power differential that favoured [the manager] due to both his age and gender. [The victim’s] dignity was impaired by the insecurity caused to her by the unwelcome advances and by her clearly expressed feelings of insult.”

Employers beware!

There’s many a warning for employers in the above examples. Our courts will hold you responsible for any failure to protect your employees so act quickly and decisively to both prevent and deal with any instances of workplace sexual harassment. Our labour laws are complex and the penalties for breaching them high, so take specific advice upfront.

28 Nov 2017

Don’t Drink and Drive! The Legal Limits, the Risks, and Advice if Arrested

With stats showing that at least 50% of road deaths are alcohol-related, the authorities will no doubt ensure that once again the Festive Season is also the Season of Roadblocks.
What happens if you are caught driving “over the limit”?

This is what you face –

  • Immediate arrest and detention
  • A compulsory blood test
  • Prosecution in court (facing substantial penalties, including imprisonment for serious cases)
  • If you have caused a death you could well be charged with murder rather than just culpable homicide
  • Suspension of your driver’s licence
  • A criminal record (you can only apply for expungement after 10 years)
  • Whatever happens in court, if you hurt or kill someone else that’s going to be on your conscience. Drunk driving is a choice you make and you will live with the consequences.

Here’s how to avoid all that angst and risk –

The obvious one – don’t drive after drinking. The limits are (blood) 0,05 gram alcohol per 100 millilitres or (breath) 0,24 milligrams per 1,000 millilitres. Note that lower limits apply to professional drivers (0,02 gram and 0,10 milligrams respectively).

Remember that many of the online advice columns on how much it’s safe to drink without exceeding the limit are approximations only – stay well under the recommended number of drinks!

If you don’t have a “designated driver” in your group, use a taxi, Uber, Taxify, Home Drive service etc – convenient, cheap, easy, and responsible.

What if you are arrested? There’s some good advice in the last section of this article: “Drunk driving in SA: Jail, criminal record and huge fines” on Wheels24.

28 Nov 2017

5 simple ways to enjoy your break and not worry about work

As we start winding down after a hectic 2017, now’s our chance to take a deep breath, relax and start re-charging our batteries in preparation for a whole new year – 2018.

Whether you’re an employee, entrepreneur or captain of industry, here’s a quick read for you – “5 simple ways to enjoy the holiday break and not worry about work” on the Robert Half blog. The Bonus Tip – “Go Bush” – is our favourite!

P.S. If your break plans include a festive feast or two, before tucking in watch this Times Magazine video “Eating Too Quickly May Be Bad for Your Health”

Thank you for your support in 2017. Have a Wonderful Festive Season, and a Happy and Prosperous 2018!

09 Nov 2017

“Surviving spouses” in Polygamous Muslim Marriages

In terms of the provisions of the Wills Act of 1953, surviving spouses in Polygynous Muslim Marriages were not afforded the same rights and protection as those afforded to surviving spouses married under the Marriage Act and the Civil Union Act.

As the Muslim Marriages Bill has not yet been passed there has still been much uncertainty as to where these spouses stand. Thankfully however a recent court decision has pushed spouses in Muslim marriages one step closer to obtaining full legal protection.

Case Law:

In the case of Moosa NO and other v Harnaker and others (400/2017) the rights of widows in Polygynous Muslim Marriages, or the lack thereof in terms of the Wills Act, was challenged and found to be unjust and unconstitutional.

In this case, the deceased had two wives and 9 children. Both marriages had been conducted according to Muslim rites, but only the first marriage had been registered in terms of Civil Law. The deceased left an Islamic will, allocating the shares of his estate to his children and two wives.

The deceased’s children repudiated their share of the inheritance in favour of their mothers, and the executor opted to rely on section 2C(1) of the Wills Act with regards to the renunciation.

The Deeds Office however refused to register a portion of the house under the name of the wife who was married only in terms of Muslim rites based on the grounds that a Muslim spouse is not a “surviving spouse” in terms of section 2C(1) of the Wills Act.

The court held that:

The exclusion of surviving spouses in Polygynous Muslim Marriages from section 2C(1) of the Wills Act was unconstitutional and unjust and for the purposes of section 2C(1) of the Wills Act, a surviving spouse now includes every husband and wife of a monogamous and polygynous Muslim Marriage.

The good news:

Surviving spouses in Muslim marriages no longer have to fight for the rights which they are entitled to according to Shariah Law or Islam.

Whether there is one spouse or three, they will all be recognized as surviving spouses in terms of the Wills Act. There will no longer be any differentiation between a ‘surviving spouse’ married according to Muslim Rights and those married according to Civil Rights in terms of inheritance. All the spouses will be entitled to the same rights and protection afforded to civil spouses and are allowed to inherit from their deceased spouse’s estate equally.

Kind Regards
Farzanah Mugjenkar
Miltons Matsemela Inc.

01 Nov 2017
31 Oct 2017

Closing Down the Guesthouse Next Door: Notes for Owners and Neighbours

“You can be a good neighbour only if you have good neighbours” (Howard E. Koch, playwright)

You decide – for whatever reason – that your neighbour’s new guesthouse is definitely not first prize in your sleepy and peaceful suburb, so you investigate.

You find out that the local municipal zoning scheme doesn’t allow anyone to trade as a guesthouse without a special departure permit, and that your neighbour doesn’t have one.

What are your rights and what must you prove to get assistance from our courts? Must you prove, for example, that you have suffered some form of damage or is it enough to prove only the lack of a permit?

A recent High Court decision illustrates, and would-be guesthouse owners as well as their neighbours should take note.

Shattering the peace – wild parties and nuisance guests

  • Residents of a quiet suburb with ‘single residential’ zoning asked the Court to interdict their neighbour from running a guesthouse next door.
  • They alleged a number of nuisance disturbances including a wild party of over 50 people “drinking, swearing, yelling and urinating in the street”. That all-nighter was, they said, only temporarily interrupted by a visit from SAPS at 3 a.m. – it finally ended at 7 a.m. after a second police intervention. Other allegations related to disruptive behavior by guests arriving and departing in buses, taxis, trucks and construction vehicles.
  • The guesthouse was being operated without the special permit required by the local zoning bye-laws.
  • The guesthouse owners said that they had twice applied for special permission in the correct format and had twice been given consent to continue operating the business pending final approval. This was hotly disputed and in any event, held the Court, “such informal authority cannot be the authority … envisaged by the relevant ordinances and regulations in this regard. After the proper procedure had been followed, and in particular after proper notices have been given to the property owners in the vicinity of the guesthouse, and notices in the local Newspaper, only then after proper consideration may consent be granted for the special use as a guesthouse. Up until that stage the guesthouse on the property is being run illegally.”
  • Nor did it help the owners to deny the allegations of nuisance behavior by guests. Such denial, said the Court “does not detract from the continued illegality of [their] use of the property.”
  • The owners also argued that a complaining neighbour has no right to ask for a court’s intervention without proving that it suffered some “special damage”. The Court disagreed – zoning schemes confer rights on affected property owners and they “are entitled to require that neighbouring owners comply with the applicable zoning scheme”. That’s an important decision – it makes it a lot easier for affected neighbours to get redress.
  • The Court also rejected the guesthouse owners’ application for a suspension of the interdict pending the outcome of their permit application.
  • The end result is that the guesthouse must close (after a short grace period to allow longer term residents to find alternative accommodation).

Opening a guesthouse? It boils down to this …

Each municipality will have its own bye-laws in regard to exactly what is and what isn’t allowed in each zoning category. Where a formal municipal permit is required to operate a guesthouse, that permit must be applied for and must be granted before the business opens. Otherwise your neighbours can ask a court to close down you down, proving nothing more than the lack of a required permit.

First prize is always to negotiate all your neighbours onto your side from day one, and in any event it’s worth getting legal help for your permit application to ensure your position is unassailable.

And a final note for suffering neighbours

Stand up for your rights, although of course even if you are 100% in the right, going to war with your neighbours should be the very last resort – there are no winners in a fight like that. But if a polite request to “please close your doors” or “please stop disrupting our peace” doesn’t help, seek legal assistance immediately.

P.S. What about Airbnb?

There are grey areas around how zoning restrictions apply to short-term lets in South Africa, and municipalities all have their own requirements for bed and breakfast and other types of guest accommodation. Take advice on what your local council’s requirements and limitations are.

31 Oct 2017

Creditors and Debtors: Important New Prescription Judgement

“Running into debt isn’t so bad. It’s running into creditors that hurts” (Unknown)

Debts prescribe (become uncollectable) after a specified period of time – 3 years for most run-of-the-mill debts but 30 years for others such as judgment debts, mortgage bond debts, property rates and tax debts. Various other periods apply to specific statutory debts and a few other exceptions – take advice if you need more detail.

It’s important to know that the prescription period can be “delayed” in certain cases. For example where the debtor is a minor or insane, or under curatorship, or out of South Africa etc (there’s a long list).

Prescription can also be “interrupted”, most commonly by serving summons on the debtor or by the debtor making an “express or tacit” admission of liability.

It’s that last scenario we’re going to discuss, because of course it’s both an opportunity for creditors to extend the prescription period, and a danger for debtors waiting hopefully for their debts to prescribe. Unscrupulous but savvy debtors will accordingly try their utmost to avoid making any form of admission of liability.

A very prejudicial “without prejudice” admission

Now a new SCA (Supreme Court of Appeal) decision has just added a significant twist that both creditors and debtors should take note of.

It revolves around the principle that during settlement negotiations we can safely make admissions “without prejudice”. The idea is that, in order to encourage us to avoid the expense, delay, hostility and inconvenience of litigation, we can speak frankly without fear that our admissions can later on be used against us in court. The only exception to that rule has (until now) been that an “act of insolvency” can be proved by admissions made by a debtor in without prejudice negotiations.

Developer v estate agency – R2m at stake

  • An estate agency claimed R2.147m in sales commissions from a property developer.
  • The developer in turn sued the agency for R1.023m for a variety of counterclaims against it.
  • During settlement negotiations the developer admitted its liability for the commission claims but suggested, on a without prejudice basis, that the two sets of claims be set off against each other, and tendered payment of the net balance.
  • The agency rejected this offer, a court battle ensued, and the developer raised the defence that most of the agency’s claims had prescribed as being older than three years.
  • The SCA rejected the prescription defence, holding that the three year period had been interrupted by the developer’s admission of liability – despite it having been made without prejudice.

That’s new law, and it’s important both –

  • For creditors to recognise the new opportunity they now have to extend prescription, and
  • For debtors to recognise the new danger of hiding behind the “without prejudice” shield when making admissions.
    • The end result – the claims haven’t prescribed and the developer must fight on in the main action.

Note that the new exception to the without prejudice rule is limited solely to interrupting prescription. Admissions made without prejudice still can’t be used to prove that you owe money, nor to prove how much you owe. They can only be used to interrupt prescription, and even then as the Court put it: “The exception itself is not absolute and will depend on the facts of each matter. And there is nothing to prevent the parties from expressly or impliedly ousting it in their discussions.”

Lessons for creditors and debtors

Creditors: Prevention as always is a lot better than cure, so avoid arguments over prescription arising in the first place. Don’t delay in collecting debts, suing for damages or recovering any other form of claim. Serve summons on your debtor before you lose your claim forever.

Debtors: We should of course all try to honour our debts. As the Roman writer Publilius Syrus pointed out over two millennia ago “A good reputation is more valuable than money”. But if you plan to fight any claim against you, you lose a valuable defence if you in any way admit liability, “without prejudice” or not.

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