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29 Jun 2020

THE LATEST LEVEL 3 REGULATIONS EXPLAINED

On 25 June 2020, Government gazetted a set of amendments to the Regulations that govern lockdown which came into effect immediately. Relevant Cabinet members were then called on to issue directives governing their respective portfolios. Today, these have been gazetted and are in effect.

Click here for the amended Level 3 Regulations, highlighting the new changes.

What does this mean for us?

Here are the major changes:

  • Exercise from 06h00 to 18h00 in groups of up to 4 persons is now permitted, provided health protocols and social distancing measures are adhered to.
  • Worship gatherings within the same province, conferences (for business purposes), cinemas, theatres and casinos are to open again. All of these are limited to 50 people or less, given the respective facilities, and are subject to strict adherence to all health protocols and social distancing measures.
  • Sporting activities, subject to directions issued by the Cabinet member responsible for sport, are permitted in the following manner-
    • non-contact sports matches, which may only include players, match officials, journalists, medical and television crew members; and
    • contact sports for training only.
  • Restaurants, Museums, Galleries, Libraries, Archives and all Personal Care enterprises may open again, subject to the strict adherence to all health protocols and social distancing measures.

The following premises remain closed and their related activities prohibited: Gyms; sports grounds and swimming pools (except for training of professional sportsmen and women and non-contact sports matches); fêtes and bazaars; night clubs; accommodation establishments not formally accredited and licensed, such as private homes for short term letting for paid leisure purposes; any on-consumption premises including bars, taverns and shebeens; beaches and public parks and both domestic air travel and travel on passenger ships for leisure.

There have been no changes made to the regulations governing the sale of tobacco or alcohol.

We shall continue to keep you updated as more information becomes available.

Kindest regards.

Miltons Matsemela Inc.
29 June 2020

26 Jun 2020

FINAL DATES FOR POPI TO COME INTO FORCE. TIME TO GET COMPLIANT.

On 22 June 2020, the Presidency confirmed the effective dates for the commencement of the bulk of the remaining sections of the Protection of Personal Information (POPI) Act.

Parliament assented to the POPI Act on 19 November 2013. The commencement date of section 1, Part A of Chapter 5, section 112 and section 113 was 11 April 2014.

Under proclamation No. R. 21 of 2020 in Gazette no. 11136, Vol. 660 No 43461 dated 22 June 2020, the commencement date of the other sections is 01 July 2020 (with the exception of section 110 and 114(4) which shall commence from 30 June 2021).

The aforementioned sections of the Act which commence on 1 July 2020 relate to:

  • Conditions for the correct management and process of personal information;
  • The regulation for special personal information processing;
  • The Codes of Conduct issued by the Information Regulator and the procedures for dealing with complaints; and,
  • The Provisions regulating direct marketing by means of unsolicited electronic communication and general enforcement of the Act.

It should be noted that section 114(1) states that all forms of processing of personal information must, within one year after the commencement of the section, be made to conform to the Act. Thus all entities, private and public, must be compliant with the Act by 01 July 2021.

Warmest regards,

Miltons Matsemela
23 June 2020

24 Jun 2020

THE EMERGENCY SUPLEMENTARY BUDGET – HOW DOES IT AFFECT THE PROPERTY SECTOR?

There were no surprises in Minister Mboweni’s supplementary budget speech delivered today, 24 June 2020. Tax rates, transfer duty and VAT all remain the same. The government has also budgeted to pay R3 billion to ensure the solvency of the Land Bank.

Original estimates as to how our economy would perform this year have been negatively affected, and the economy is now expected to contract by 7.2%.

In his speech, the Minister highlighted the increasing gap between tax collection and expenses, which has been exacerbated by the COVID-19 pandemic, and has budgeted to borrow an additional $7 billion to balance the accounts.

The Minister was acutely aware of the possibility of a sovereign debt crises, which would occur if the country would be unable to service its debt. To prevent this there are plans to stabilise debt repayment during the 2023/24 budget. Until then our national debt will certainly increase.

We will keep you informed of any other important developments that might come to light in the legislation that follows the speech.

Warmest regards,

Miltons Matsemela
24 June 2020

19 Jun 2020

COURT ORDERS DEEDS OFFICE TO WORK

The Cape Town High Court has today, 19 June 2020, ordered that the Cape Town Deeds Office must continue with full operations. The Order is subject to protocols being implemented to curb the spread of COVID-19.

The Court went on to deal with the backlog that has built up during the hard lockdown and the subsequent period of interrupted service. The Minister and the Registrar of Deeds must now develop a plan to deal with the backlog which must be published within 5 days.

We are extremely pleased that the matter has been dealt with so expeditiously and we look forward to the Deeds Office returning to normal operations in the not too distant future.

At Miltons Matsemela we are proud to have been part of this initiative, and we will continue to do what we can to support the industry and our partners in property.

Warm regards

Miltons Matsemela.

12 Jun 2020

UPDATE ON HIGH COURT APPLICATION AGAINST THE CAPE TOWN DEEDS OFFICE

Further to our Newsflash earlier this week, where we advised that the Cape Town Attorneys Association had launched an urgent application against the Cape Town Deeds Office, to address the intermittent closures due to alleged Covid scares, we have just received a copy of the High Court Order. It stipulates that the Deeds Office “shall reopen on Monday 15 June 2020 and resume its full operations immediately, subject to social distancing and related health protocols”.

Regarding all the other issues that were raised in the Application and where further relief was sought against the Deeds Office, the matter was postponed to next week Friday 19 June 2020 for argument and to allow for the further exchange of affidavits, and “Heads of Argument”, by the advocates.

We will keep you updated.

Warmest regards,
Miltons Matsemela Inc

11 Jun 2020

CASE LAW UPDATE: FFC delayed? You can still claim your commission!

ESTATE AGENTS MAY NOW CLAIM COMMISSION WHEN THE ISSUE OF THEIR FIDELITY FUND CERTIFICATE IS DELAYED

THE DECISION IN SIGNATURE REAL ESTATE v CHARLES EDWARDS PROPERTIES OVERTURNED ON APPEAL

We all know that estate agents cannot lawfully trade and cannot claim commission if they do not hold a valid Fidelity Fund Certificate (FFC). But what if the FFC was not issued because of a lapse by the Estate Agency Affairs Board?

In January 2019 we reported on a judgment of the Cape Town High Court, where the relevant sections (26 and 34A) of the Estate Agency Affairs Act were interpreted in a very strict way. In this case, Signature Real Estate was deprived of their right to recover their commission when they did not have a valid Fidelity Fund Certificate (FFC), even though they had done everything to obtain their FFC in good time, and a FFC had even been issued, but in the wrong name. Everyone accepted that it was the inefficiency of the Estate Agency Affairs Board (EAAB) that had prevented them from being compliant.

Herewith a LINK to our article on that judgment.

In a nutshell: Signature had applied for their FFC, but because of an error at the EAAB the FFC was only issued some months into the new financial year. Prior to the correct FFC being issued, Signature assisted in the conclusion of a lease agreement with another agency (B) and the full commission was paid to B. B then refused to pay Signature’s share. B’s defense was that Signature was not in possession of a valid FFC at the time the commission was earned.

Technically B was correct, and the Cape Town High Court at that time ruled that section 34 of the Estate Agency Affairs Act, as read with section 26, means strictly what it says: No FFC, no commission, full stop!

We are pleased to report however that yesterday, 10 June 2020, the decision of the Cape Town High Court was reversed by the Supreme Court of Appeal and Signature is now legally entitled to be paid their commission.

In finding for Signature the Court held that to interpret Sections 26 and 34A so strictly, so as to refuse an agency’s claim for commission, where the delay in issuing the FFC lay squarely on the shoulders of the EAAB, was contrary to the spirit and object of our Bill of Rights, more specifically the rights enshrined in our Constitution that entitle us to engage freely in a trade, occupation or profession. Furthermore, the Court found that the strict, literal interpretation of the relevant sections in the circumstances of this case, was not consistent with the purpose that the law was intended to achieve.

This is a very positive judgment for estate agents, MANY of whom struggle to get their FFC’s issued in time due to the inefficiency of the EAAB. The judgment has recognized that to refuse a claim for payment of commission by an agent, who has submitted a proper application for an FFC in good time, and who has not received it simply because of inefficient administration, is contrary to that agent’s constitutional right to trade.

This judgement is long overdue, and we are extremely pleased to be able to share this with you all.

On a cautionary note, the judgment did emphasize that the facts of this case did fall within a “narrow compass” and that the decision was made on the basis that Signature was considered to be in possession of a valid FFC at the relevant time. The judgment also went on the mention that the decision should not be seen as an invitation to adopt a liberal approach to the application of section 34A of the Act, which will obviously be strictly applied in other circumstances. If your application was late, or defective in any way, or if you have done nothing to get errors in the FFC corrected, this judgment will not come to your assistance.

Warmest regards

Miltons Matsemela
Robert Krautkramer & Deon Welz

10 Jun 2020

ATTORNEYS TO TAKE DEEDS OFFICE TO COURT

By now you will all have heard that the Cape Town Deeds Office has closed yet again, because one of their staff have allegedly come into c ontact with someone who is allegedly Covid-19 positive.  As such and for now, our registrations are yet again on hold and we can again not predict with any certainty when our transfers and bonds will register.

Yesterday, the Cape Town Attorneys Association (CTAA) sent a letter to the Deeds Office demanding that it reopen, because we are all of the view that there are no proper grounds for a complete closure. In their letter the CTAA threatened to bring an urgent High Court application to address the matter if no positive response was received. The Deeds Office has not responded.

Accordingly, the CTAA, as well as the Tygerberg Attorneys Association and the Institute for Estate Agents, are busy preparing an urgent application to Court which is scheduled to be heard on Friday 12 June 2020. The chances are however that the matter will be postponed to a date next week.

As part of the CTAA, Miltons Matsemela agrees with this approach and we are contributing towards the costs of these court proceedings. We believe that there is now too much at stake for us just to sit back while our business and the businesses of our partners in property are failing.

We will keep you posted on developments.

Warmest regards,
Miltons Matsemela Inc

10 June 2020

03 Jun 2020

LOCKDOWN REGULATIONS DECLARED UNCONSTITUTIONAL

In a judgment delivered on 2 June 2020 Judge Norman Davis of the Gauteng High Court in Pretoria has declared the vast majority of the regulations governing the Level 4 and 3 lockdowns as being unconstitutional.

Herewith a brief summary of the judgement:

In essence, the applicants wanted to have the entire state of disaster declared unconstitutional. After hearing argument and reading the affidavits that were filed, the court held that there was enough evidence to show that the decision to declare the State of Disaster was perfectly justifiable, and that the limitation that this placed on all of our human rights was in line with our constitution.

The applicants then also asked the court to declare the lockdown regulations (Levels 3 and 4) unconstitutional. Here the court confirmed that the final decision making power in determining what measures are to be implemented when dealing with such a situation lies exclusively in the hands of the Minister of Cooperative Governance and Traditional Affairs, Dr Dlamini Zuma, who must exercise these powers after consultation with the other cabinet members. However, the power is then limited to decisions which will assist and protect the public, provide relief to the public, protect property, prevent or combat disruption, or deal with the disruptive nature of the disaster.

The court also confirmed that in deciding on any of these issues, there must be a rational connection between such decisions and the purpose for which such a power was conferred.

As such, the court was required to test the rationale behind the limitations that have been imposed under Levels 4 and then 3, and to ask itself whether they reasonably and justifiably infringe on our constitutional rights.

The court took serious issue with many of the limitations. For example, it questioned the rationale behind the regulation that prevented someone from visiting and supporting a dying family member during lockdown (unless they were the carer), but when the family member has died, 50 people armed with copies of his death certificate may travel from all across South Africa to bury him! In another example the court noted the irrationality of the situation where a single mother who works in a salon, and who would maintain all the required health and safety protocols in her business, was prevented from earning a living to support her family when she can see people huddled together traveling in a taxi.

The judge pointed out many other irrational aspects in the regulations.

According to the judge, the only regulations which were justifiable were the regulations prohibiting evictions, prohibiting initiation practices, and closing certain public places, such as night clubs and casinos. The closing of our international borders as provided for in the current regulations was also justified.

The court also briefly reflected on the prohibition of tobacco sales but as this is at the center of another pending high court application, it refused to express a view and left the matter to be decided by that court. That case will be heard later this month, and we are confident that those regulations will also be shot down.

In a nutshell the court found that (save for the few instances referred to above), there is no rational connection between the regulations that have been passed and the and the results they are intended to achieve. The regulations were therefore found to place unreasonable limitations on our rights and were accordingly unconstitutional.

The minister has now been given 2 weeks to draft new regulations that will be in line with our constitution.

So where to from here?

The government can appeal the decision. They can also ask for more time in which to draft revised regulations. Whatever happens, the current regulations will continue in force for at least the next 14 days.

Coincidentally, in terms of the Disaster Management Act, the current State of Disaster terminates automatically after 3 months and this date coincides with the end of this 14-day period. We suspect therefore that the whole playing field will have changed by that date and we will in any event require new regulations to be in place.

Let’s hope that these new rules will be drafted with more consistency and with more emphasis on the preservation of our rights as enshrined in the constitution.

Until then, our advice is the following: Keep Calm – and let’s just carry on for now!

We will keep you posted.

Warmest regards
Miltons Matsemela

03 June 2020

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