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28 Feb 2017

Accepting offers after they have lapsed

It happens every now and again that offers are accepted after the deadline to do so, has expired. Naturally the resultant reaction by everyone is “what do we do now??! Is this a valid sale or is it void? Or is it, maybe voidable?”

The simple reality of the matter is that there is (at least to my knowledge) only one reported judgment in our country’s history which actually specifically deals with this scenario, that of Manna v Lotter, which judgment was handed down in March 2007 already in the Western Cape High Court.

In essence what happened here, was that the offer only arrived at the seller’s desk some 3 or 4 days after it had already expired. Nonetheless, the seller accepted the offer and returned it to the agent, who sent it to attorneys for further action. No one noticed that the expiry date had already lapsed well and truly, by the time it had been accepted. The buyer paid his costs; signed the transfer documents and did all that was required of him. The seller however then went silent and only after the buyer started to make some significant noise, did the seller suddenly turn around to say that in her opinion the sale was void as it was accepted out of time!

One may be tempted to argue that by accepting the offer out of time, it amounts to a “counter offer” of sorts – and if that were true, then it would have to follow that the buyer would have to somehow accept this in writing to comply with the Alienation of Land Act’s requirements. The judge in this matter however, saw things differently. He held that this clause is one that is there, solely for the benefit of the buyer – much like a bond clause – and that as such, it was for the buyer to decide whether to waive the benefit of that clause. The judge then reasoned further that this being the case, when a seller accepts an offer “out of time”, it does not amount to a counter offer. The formalities of the Alienation of Land Act are all still perfectly intact – the sale agreement is in writing; it is signed and it identifies the property and selling price. According to the Judge, all that remained is for the buyer, once he becomes aware of the late acceptance, to then, and within a reasonable time, waive the deadline he had imposed for his benefit. And once he does, the sale agreement becomes final and binding.

As such, and should you find yourself in this predicament that an offer was accepted out of time, all one needs to do to ensure that the sale is indeed safe, is to obtain something from the buyer ASAP and in writing wherein he / she states that he / she waives the benefit of that clause and is still prepared to proceed with the sale agreement and then communicate this to the seller ASAP too!

Robert Krautkrämer

28 Feb 2017

Is Facebook Giving You FOMO?

“FOMO”, the Fear of Missing Out, is a phenomenon that has been with us forever.  But it’s never been as pervasive as it is now, and it seems that the “Facebook Illusion” is largely to blame.

Naturally enough, Facebook posts tend to show the world a “cherry-picked perfection” version of other peoples’ lives, and if that starts impinging on your happiness levels, get some science-based perspective with “FOMO: This Is The Best Way To Overcome Fear Of Missing Out” on the Barking Up the Wrong Tree Blog here.

28 Feb 2017

Employers and Employees: Don’t Tolerate Workplace Racism

There are many bridges yet to be crossed in our journey from crude and legalised racism to a new order where social cohesion, equality and the effortless observance of the right to dignity is a practical reality (from the judgment below)

Our highest Court recently provided very strong confirmation that employers have both a right and a duty to stamp out racism in the workplace.

No “mollycoddling” for using the k-word

  • A SARS official used the k-word during an argument with his manager
  • He admitted it at a disciplinary hearing and was given a final written warning valid for six months, a suspension without pay for ten days, and a referral for counselling
  • When the SARS Commissioner changed that to outright dismissal, the employee challenged his dismissal in the CCMA, which ordered his reinstatement. Both the Labour Court and the Labour Appeal Court upheld the reinstatement and eventually SARS took the matter on appeal to the Constitutional Court
  • Finding that dismissal rather than reinstatement was the appropriate sanction, and thus upholding the appeal, the Court issued a strong message on the dangers of racism in the workplace: “The use of this term captures the heartland of racism, its contemptuous disregard and calculated dignity-nullifying effect on others. It bears repetition that [the employee’s] utterances constitute a racial minefield in the workplace ever-ready to explode at the slightest provocation. Conduct of this kind needs to be visited with a fair and just but very firm response by this and other courts as custodians of our constitutional democracy, if we ever hope to arrest or eliminate racism. Mollycoddling cannot cut it.”

Why not reinstatement?

There is a clear signal in this judgment to both employers and employees that in serious cases of racist behaviour, it won’t be easy to convince a court that reinstatement is appropriate:  “Where such injurious disregard for human dignity and racial hatred is spewed by an employee against his colleagues in a workplace” held the Court, “that ordinarily renders the relationship between the employee and the employer intolerable”.

Clearly therefore, serious offenders should generally expect the ultimate sanction of full dismissal.

Employers – procedural blunders will cost you

No matter how good a case you have against an employee for his/her dismissal, remember that not only must a dismissal be substantively fair, it must also be procedurally fair.  As the Court in this case put it “… the sanction of dismissal is so livelihood-threatening and serious that a breach of the relevant regulatory framework ought generally to be viewed in a serious light.”

So, because SARS had exposed the employee to avoidable litigation costs through a series of blunders in the way it handled the dismissal process, and despite the seriousness of the employee’s offence, the Court awarded him six months’ salary as compensation.

28 Feb 2017

How to Freeze Your Dodging Debtor’s Assets

“Pyrrhic victory”, n.  A victory gained at such great cost that it is actually a defeat

Joe Debtor owes you a fortune but does everything he can to frustrate your debt collection attempts.  He strings you along with spurious queries and false promises, and when you issue summons he defends your action with every delaying tactic he can come up with.

Joe, you suspect, has one reason and one reason only for this delay – he needs time to get rid of all his assets so that when you finally get your judgment against him he has nothing left worth attaching, and you are left with a classic Pyrrhic victory and a large legal bill to pay.

The good news is that our law comes to your rescue in such cases with an “anti-dissipation interdict” (you might hear lawyers referring to it as a “Mareva Injunction” after a famous English case) which effectively freezes the debtor’s assets and preserves them until your litigation is finished.

The delaying debtor who sold all her properties

A recent High Court judgment paints a typical picture and nicely encapsulates our law on the matter –

  • The creditor in this case had lent money to a close corporation (CC), which was then liquidated
  • A surety had disclosed three immovable properties as being her only assets
  • The creditor sued the surety for almost R600,000 and in defending the claim she entered a “terse” plea (her answer to the claim) acknowledging the suretyship but baldly denying everything else and putting the creditor to the proof thereof.  She was then unwilling to attend a pre-trial conference, saying that the date set for it wasn’t suitable but then not responding when offered alternative dates
  • When the creditor found out that the debtor had sold her three properties, it asked her for an unconditional undertaking to hold back transfer until the litigation was finalised
  • Again, silence from the debtor, and when it became clear that transfer of the properties was imminent, the creditor asked the Court for an urgent anti-dissipation interdict
  • The debtor failed to file any intention to oppose, nor did she lodge any answering affidavit. Her legal team did however appear for her at the hearing, to argue that the interdict should not be granted.

What you must prove; and the outcome

Stopping someone from dealing freely with their own assets is of course a pretty drastic remedy but our courts will do so when necessary to prevent a dishonest debtor from perverting the course of justice and causing an injustice to a creditor.  What you must show, said the Court, is that –

  1. The debtor is wasting or getting rid of assets, or is likely to do so; and
  2. The debtor has “a particular state of mind”, i.e. the debtor is getting rid of assets, or is likely to do so, “with the intention of defeating the claims of creditors”.

In all the circumstances of this case the Court found that the debtor was delaying the inevitable in order to transfer all her properties to the creditor’s prejudice, and accordingly it ordered the transferring attorneys to hold in their trust account, pending finalisation of the litigation against the surety, both the R600k and an additional amount of R100k.

28 Feb 2017

Estate Agents – The Simple Mistake That Cost a 10% Commission

There’s many a slip ‘twixt the cup and the lip (very wise old proverb)

A recent Supreme Court of Appeal (SCA) case shows yet again how essential it is to double-check that your Fidelity Fund Certificate (FFC) is both current and valid.  Remember that you must hold FFCs not only for your trading entity (if you operate through one) but also for all directors/members/principals and agents.

The Estate Agency Affairs Act disentitles you to any remuneration if you don’t hold a valid FFC.  Don’t drop the ball on that one!

A fatal oversight

The facts in the SCA case were these –

  • An estate agency company converted to a close corporation but forgot to advise the Estate Agency Affairs Board of the conversion.
  • The agency had no valid FFC at all when it was supposedly granted a mandate (the existence of a mandate was in dispute) by three companies to sell their interests in a mining operation (comprising an immovable property, mining permits, and inter-company shareholdings).
  • By the time the agency fulfilled this supposed mandate by introducing a buyer, it had acquired FFCs – but they were in the names of the non-existent company and the ex-director. The CC and its member held no FFCs.
  • The seller refused to pay the claimed 10% commission and raised several defences, including an assertion that the close corporation had no FFC and was thus not entitled to any remuneration.

On appeal, the SCA overruled the High Court’s finding that the agency had “substantially complied” with the Act’s requirements in regard to the FFCs. “This is not”, said the SCA, “simply an issue of nomenclature, or a misdescription in the name of the certificate holder, but one of substance. The objectives of the Act are not fulfilled by the issue of invalid certificates by the Board as they play a central role in ensuring that estate agents comply with its provisions.”

The FFCs, held the Court, were accordingly invalid, and the estate agency was not entitled to any remuneration.

In this particular case the agency had in any case failed on the facts to prove its mandate, but the warning to all estate agents is clear – holding valid FFCs is a necessity, not a technicality.

28 Feb 2017

Facebook Revenge: The Defamation Danger

Good name in man and woman … is the immediate jewel of their souls. Who steals my purse steals trash … but he that filches from me my good name robs me of that which not enriches him,
and makes me poor indeed – (Shakespeare)

Our laws of defamation are there to help you protect your good name from unlawful attack, and a recent High Court judgment about a defamatory Facebook post is a pertinent reminder of how this protection applies online as well as in the real world.

Neighbours, noisy chickens, smelly rabbits, and a “peeping tom” slur

  • H and B are neighbours in a residential estate.
  • They argued over complaints which H lodged with the Body Corporate over B’s noisy chickens. Later, when B replaced the chickens with rabbits, H complained about their smell.
    B retaliated by publishing a statement on Facebook starting a smear campaign against H, accusing him of being a peeping tom, “a perverse neighbour, an idiot and an ugly piece of *^%&”.
    This Facebook message, which identified H by name, mentioned his place of residence and had a photo of him, was accessed by B’s friends and “a hundred other people”.
  • Having obtained a court interdict ordering B to retract her statement and remove his picture from Facebook, H then sued her for R1.3m.  B did not defend the matter, and the Court had to decide on the basis of H’s story alone (a) whether H had indeed been defamed and (b) if so, what damages to award him.
  • H told the Court that his reputation, good name and standing in the community had all been affected. He had suffered shock, trauma, sleeplessness and depression, and his constitutional rights to privacy and dignity were infringed as a result of the post, which had provoked reactions including –
    • Insinuations of paedophilia and child molestation
    • Posts from other Facebook users like “shoot the bastard in the face with a pellet gun, the ugly two faced jurk (sic)” and he was called a pervert, a “flippen gemors”, “a sick *%$@^#*”, “a monster”, and “a disgusting piece of *%^$”
    • Death threats, causing him to move to another residence on the estate (to no avail as it turned out, as B also moved, becoming his neighbour for the second time)
    • “Suspicious looks” from other estate residents
    • Loss of business clients (he ran a business in the estate).

Defamation being generally defined as ‘the unlawful, intentional, publication of defamatory matter (by words or conduct) referring to the Plaintiff, which causes his reputation to be impaired”, the Court held that H had indeed been defamed and was entitled to compensation by way of damages.

Taking all the circumstances of the matter into account, the Court awarded H an amount of R350,000 plus costs.

22 Feb 2017

No shocks for the property industry in the 2017/2018 budget.

Fortunately for the property industry there were no increases in transfer duty imposed in the budget. On the contrary there was a reduction in transfer duty. In the previous year the threshold for imposition of transfer duty started at  R750,000. It will now only start at R900,000. That will help purchasers at the lower end of the market.

Of more general interest, significant changes were made to various taxes. The maximum rate of personal Income Tax rose from 41% to 45%. This applies to all revenue over R 1.5 million per annum. Capital Gains Tax for individuals increased from an effective 16.4% of any gain to 18%. Capital Gains for trusts increased from 32.8% to 36%. Dividends Tax jumped from 15% to 20%. There were no changes in tax rates for companies.

The bottom line is that wealthy individuals and trusts are going to pay more Tax!

Milton Koumbatis

03 Feb 2017

Miltons Matsemela – Charity Wednesdays

At MM we believe in supporting our community and as from the 1st March 2017, we will be re-instating our Charity Days

On one Wednesday per month one of our attorneys will provide oral legal advice to any member of the public at our Table View Office at a fee of R200 per 20 minute consultation in respect of any legal and/or property related matter.

For every R200 we accumulate, MM will contribute an additional R200, the total being R400 to be donated to the chosen charity of the month.

The time slots for these consultations are to be scheduled from 16h00 until 19h00 on the first Wednesday of each month.

To make an appointment, please contact Melissa on 021 521 1300 or email melissal@miltons.law.za

02 Feb 2017

Small Business Ideas For 2017

“Whosoever desires constant success must change his conduct with the times” (Niccolo Machiavelli)

The most successful small businesses are always going to be those that best adapt to change by seizing the new opportunities that it always brings.
So what’s in store for us in 2017?

For an overview of some scenarios, and for some very interesting thoughts on how we can profit from them this year, see “South African small business opportunities in 2017” on the Cherryflava website.

02 Feb 2017

Barking Dogs Driving You Batty? Noisy Neighbours and the Interdict Option

“Nuisance usually involves repeated infringement of the Plaintiff’s property rights. An objective weighing up of the interests of the various parties, taking into account all the relevant circumstances is required in these matters” (from judgment below)

If the dog-next-door’s incessant barking is destroying your quality of life, read on.  A recent High Court case illustrates our law’s approach to protecting you from noisy neighbours generally.

The Chihuahua’s Tale

  • In a rustic township development boasting a wide variety of free-roaming wild animals (giraffe, kudu, warthog and the like), a management rule provided that no pets or farm animals were allowed in any public place, street or private property
  • However the owners’ committee granted special permission to a resident, who had been left temporarily homebound after a car accident, to keep a miniature chihuahua.  That permission came with a warning that it could be withdrawn if complaints were received
  • When the neighbours did indeed complain of continual barking from early in the morning, the committee duly revoked its permission to keep the dog.  It then applied to Court to interdict the dog’s owner (and his mother, a fellow occupant of the house) from keeping the dog
  • The Court was unable to decide a dispute around whether or not the occupants were bound by the management rule in question.  Nevertheless it granted the interdict on the general principles of nuisance, commenting that the neighbours “are entitled to the peaceful and undisturbed use of their property and the enjoyment of the nature thereof” and that the occupants “may not exercise their rights of enjoyment of their property including their ownership of a pet in such a manner or fashion that it encroaches on neighbours’ (in the broad sense) rights”
  • However, swayed no doubt by reports of the resident’s fragile mental state (including a possible suicide attempt) the Court made the interdict a conditional one – the dog can stay provided it is kept inside the house and is not left unattended, and provided the owner takes “active steps” to ensure that it doesn’t become a nuisance to other owners.

4 things to try before you rush off to court

  1. Taking the legal route without warning will probably be seen by the dog’s owner as a declaration of war, and there will be no winners there.  So start off with a friendly approach.  Aim for a win-win scenario with help from a step-by-step advice article like WikiHow’s “How to Deal With a Neighbor’s Barking Dog” here.
  2. If that proves fruitless, a “neighbours at war” nightmare is still avoidable if you can agree on mediation or arbitration – ask your lawyer to arrange it.  If you live or work in a “community scheme” like a sectional title or Home Owners Association development, apply for low-cost dispute adjudication by the new Community Schemes Ombud Services.
  3. Or you can ask your local municipality to help by enforcing whatever by-laws it has to regulate the keeping of animals, excessive barking, unreasonable noise etc.
  4. SAPS usually responds only to serious violations of our anti-noise laws but if you can arrange for a warning visit from a blue uniform that might solve your problem once and for all.

Going to court should be a last resort – here’s how the Judge in this case began his judgment: “It is to be deprecated that a High Court is burdened with such a dispute as the present one and it is equally deplorable that the parties cannot themselves resolve an issue of this nature”.  Getting on the wrong side of a tetchy Judge is never going to be a smart move.

Whatever you do, don’t suffer in silence – our law will help you!

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