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CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ associations, the requirement for a reasonable approach is entrenched in the very laws which govern how a sectional title scheme should be managed.

Where the trustees have reasonably, after following due process and considering all relevant factors, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme.

This is according to the Prescribed conduct rule 1 in Annexure 9 of the Sectional Titles Regulations which deals with the keeping of pets, including reptiles or birds.

It states:

“1. (1) An owner or occupier of a section shall not, without the consent in writing of the trustees, which approval may not unreasonably be withheld, keep any animal, reptile or bird in a section or on the common property.

(2) When granting such approval, the trustees may prescribe any reasonable condition.”

The phrases, “may not unreasonably” and “may prescribe any reasonable”, clearly seek to assist in the creation of harmony amongst a community living side by side in a sectional title development.

These regulations exist to protect the pet owner from unreasonably strict rules, and equally, they must confer on the other owners the right to a nuisance-free and peaceful environment. This means that both parties need to consider each other’s needs.

This consideration, in granting or refusing consent, will be central to inquiry: will it unreasonably interfere with other’s rights to use and enjoy their units; and which conditions would be appropriate in these circumstances to ensure that the risk of nuisance is reduced to a reasonable level?

For this reason, owners or occupiers can only keep pets in a section or on any part of the common property with the written consent of the trustees. However, the trustees cannot unreasonably withhold that permission. An absolute prohibition to keep a pet could be considered unreasonable and if consent to keep a pet is unreasonably withheld, the owner can take the matter to court.

The trustees must furthermore, base their decision on the facts and circumstances of the particular case. The decision to either grant or refuse consent should be recorded in the minutes of the trustee’s meeting, giving reasons that illustrate they have applied their minds to the particular set of facts.

An example of a court case which arose from a dispute regarding permission to keep a pet in a sectional title development was Body Corporate of The Laguna Ridge Scheme No 152/1987 v Dorse 1999 (2) SA 512 (D), in which it was held that the trustees are obliged to individually consider each request for permission to keep a pet, and to base their decision on the facts and circumstances of each particular case.

A further extract from this case pointed out that trustees are not entitled to refuse an application on the basis that they are afraid of creating a precedent. The trustees were, in this case, found to have been grossly unreasonable and have failed to apply their minds when they refused the Applicant permission to keep a small dog.

The question of the reasonableness of the actions of the trustees, in granting or withholding permission and setting conditions, will turn on the nature of the pet concerned and the circumstances of the scheme. In dealing with any application for permission to keep a pet, the trustees should consider what type of pet it is, and whether there are already other similar pets at the scheme.

It is unlikely that any action by the trustees to remove a ‘companion animal’ or ‘service animal’, such as a guide dog owned by a blind or partially sighted owner, would be held to be reasonable in the absence of a clear nuisance caused by the animal. The fact that a person sometimes forms an extremely strong emotional tie with their pet could also be an important consideration when the trustees decide whether or not to grant permission.

The trustees are not, however, powerless in situations where the conditions of permission to keep a pet are not being met. The trustees can withdraw permission if it is reasonable to do so. Examples include if the pet is causing a nuisance to other owners or occupiers (e.g. barking persistently), or the pet is considered dangerous to other owners or occupiers.

Where the trustees have reasonably, after following due process, withdrawn their consent to keep a pet, the owner concerned is then not entitled to continue keeping that pet in the scheme. However, the enforcement of this could be tricky for the trustees. The body corporate is not entitled to forcibly remove a pet from an owner’s possession. This can only be achieved by a court order, if – for example – there are too many dogs being kept in an inadequate space, the trustees can get the assistance from the local SPCA who can be contacted to come to the scheme to do an inspection in loco. If it is justified, they will implement the necessary legal steps to have the dogs removed.

Careful consideration and the application of the principles as set out in the rules of the scheme and the above-mentioned regulations will lead not only to peaceful co-existence, but also healthy growth in property values for the developments implementing such approach. A harmonious board of trustees results in a happy community, which in turn will ensure a good name for any development.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

This article focuses on primarily whether the police may search a person without a warrant of arrest. On the face of it, it would appear that the search and seizure of a person and premises are in contravention with the Bill of Rights, more specifically section 14 of the Constitution of the Republic of South Africa.

With the enactment of the Constitution, there have been a number of constraints on search and seizure powers by police officials. Section 14(a) of the Constitution specifically protects the right not to have a person or their home searched. A person’s home, it is widely accepted, constitutes the highest expectation of privacy. According to section 36 of the Constitution, rights in the Bill of Rights may be limited by a law of general application, if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The Criminal Procedure Act allows the police to search any person or any container or premise of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

What this essentially means is that a police officer can search you personally or can search your car or house even when no search warrant was obtained and even when you did not give permission for such a search. However, such a type of search without a warrant can only be executed where there are reasonable grounds to believe that a search warrant will be issued to the relevant police official should he apply for it and that the delay in obtaining such warrant would defeat the object of the search.

According to the relevant case law, a police officer must have a reasonable suspicion that a person committed an offence or that a person is in possession of an article used or to be used in the commission of an offence. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because of your appearance, he or she will not be able to merely argue that there is a reasonable suspicion that you committed an offence or are in possession of an article used in the commission of an offence and, hence, will not be entitled to search you.

In terms of the South African Police Act 68 of 1995 the National or Provincial Commissioner may where it is reasonable in the circumstances in order to exercise a power or to perform a function of the service, authorise in writing a member under his command to set up roadblocks on any public road. Any member of the South African Police Service may, without a warrant, search any vehicle at such a roadblock. However, such a search without a warrant in a roadblock may only be conducted upon the written authorisation by the National or Provincial Commissioner of the South African Police Service.

It is of paramount importance that a police official exercise his or her discretion in conducting a search without a warrant carefully and does not infringe a person’s right to privacy as entrenched in section 14 of the Constitution. It is also important to note that a search and seizure by a police official must be reasonable and justifiable in terms of the Constitution.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

  • The Criminal Procedure Act 57 of 1977
  • The South African Police Service Act 68 of 1995
  • The Constitution of the Republic of South Africa,1996
  • Geldenhuys T,The Criminal Procedure Handbook, Juta, August 2010
THE IMPACT OF THE CPA ON FRANCHISE AGREEMENTS

THE IMPACT OF THE CPA ON FRANCHISE AGREEMENTS

With franchises becoming a common phenomenon worldwide and franchisors, traditionally, benefitting from a strong bargaining position when negotiating franchise agreements, regulation of the industry has become inevitable and has South Africa’s legislature initiated this regulation through the Consumer Protection Act No.68 of 2008 (“CPA”), which was signed into law on 24 April 2011.

The CPA has forcibly changed the way franchises operate, in that franchisees are deemed to be consumers in terms of the CPA and now have a whole variety of consumer rights. The CPA and its detailed regulations, regulate the whole franchising process, which includes the “franchisor-franchisee relationship” and more importantly, the franchise agreement itself, which must contain prescribed clauses and information in order to be CPA compliant.

A fundamental change affecting the franchise industry is that every franchise agreement must now contain a cancellation clause, failure of which the agreement may be declared void. In terms of section 7(2) of the CPA, a franschisee may cancel a franchise agreement, without costs or penalty, within 10 business days after signing such agreement. Under this provision, if the franchisee excercises his right to cancel the agreement, the franchisor has no remedy to recover from the franchisee any loss suffered as a result of the cancellation.

In addition to the aforesaid, a franchisor must provide a potential franchisee with a disclosure document, in terms of Regulation 3 of the CPA, at least 14 days before the franchisee signs the franchise agreement. This document is aimed at giving the franchisee all the information required in order to make an informed decision. The document must, as a minimum, contain the following:

  • the number of individual outlets franchised by the franchisor;
  • the growth of the franchisor’s turover, net profit and the number of individual outlets, if any, franchised by the franchisor for the financial year prior to the date on which the prospective franchisee receives a copy of the disclosure document;
  • a statement confirming that there has been no significant or material changes in the company’s or franchisor’s financial position since the date of the last accounting officer, auditor’s certficate or certificate by a similar reviewer of the company or franchisor, that the company or franchisor has reasonable grounds to believe that it will be able to pay its debts as and when they fall due; and
  • written projections of potential sales, income, gross or net profits or other financial projections for the franchised business.

Furthermore, the CPA governs the right of a franchisee to select suppliers in terms of section 13 of the CPA. The only platform in which the franchisor can now dictate supply are those goods which are branded or related to the branded products or franchise service.

The CPA also prohibits false or misleading representations concerning the performance, characteristics and benefits of the business, which is regarded as unfair, unreasonable and unjust contract terms. Franchise agreements must also contain provisions that prevent unreasonable fees, prices or other consideration and conduct that is not reasonably necessary for the protection of the legitimate business interests to the franchisor, franchisee or franschise system.

Sections 7 and 51 read together with Regulation 2 of the CPA, very specifically mark the parameters of clauses that must be included, as well as some that may not be included, in a franchise agreement.

Current and future franchise agreements will be largely impacted by the CPA and therefore business owners must acquaint themselves well with the ambit and workings of the CPA before entering into a franchise agreement. If you are a franchisee, it will benefit you greatly to make sure that you understand your rights and that you are not coerced into entering into a franchise agreement.

The practical effects of non-compliance with the CPA when negotiating and concluding franchise agreements have become apparent in rulings and findings by the National Consumer Tribunal, Consumer Court and National Consumer Commission, which do not tolerate any non-compliance with the strict provisions of the CPA. Readers are thus advised to obtain legal counsel before entering into a franchise agreement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

  • Consumer Protection Act. No 68 of 2008
  • Naudé T & Eiselen S, Commentary on the Consumer Protection Act, Juta, 2014
MAINTENANCE FOR DIVORCED STAY AT HOME PARENT

MAINTENANCE FOR DIVORCED STAY AT HOME PARENT

Are you recently divorced and a stay at home parent? Know your rights and get what you deserve!

In South African law, section 7(2) of the Divorce Act deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties, and it’s up to the courts to deal with the matter of maintenance.

What happens if I get divorced?

Rehabilitative maintenance refers to divorce situations where a maintenance order is given for a certain time after the divorce is finalised. The court makes a decision based on certain factors, including; the divorcing couple’s current and potential future financial means, their ages, the length of the marriage, their standard of living before the divorce, and any behaviour that may have contributed to the divorce.

In South Africa, no maintenance will be awarded to someone who can support themselves, or has the ability to support themselves. If the stay at home parent has not abandoned or downscaled his/her career to stay at home to take care of the children, no maintenance will be awarded.

How can the law protect me?

An award for rehabilitative maintenance is usually given when the court finds that a marriage has significantly affected the ability of one person to support themselves. When maintenance is awarded, the court takes into consideration the amount of time it will take for the stay at home parent to upskill him/herself to re-enter the job market. In many cases, it isn’t possible for the stay at home parent to re-enter the job market, and they may find themselves without an income once the period of rehabilitative maintenance is over.

Courts need to look at how employable the stay at home parent is when he/she seeks a maintenance award. If employability isn’t possible, the stay at home parent should be granted maintenance until death or remarriage.

The ages of the couple’s children will also be taken into consideration, as well as which parent will be the primary resident parent. Rehabilitative maintenance could be awarded to the stay at home parent to take care of the children until they can support themselves.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

MHI TURNS 19

MHI TURNS 19

It feels like just the other day that Malherbe Hanekom Inc opened its doors in 1999. The modest beginnings was at the Delphi Arena in Tyger valley. Stefanus’office was also the kitchen and Jurgens’ was also the stationery cupboard.

Within a year, we expanded to 297 Durban Road and in 2005 to the bigger 295 Durban Road where we still are today.

mhi

Due to the astounding growth rate and loyal clientele, we now have a sound structure of 8 attorneys, 2 candidate attorneys and an additional staff contingent of 19.

Having started out with a primary focus on Property Law, we now offer our clients a comprehensive service that includes, inter alia, Commercial Law, Civil Litigation, Commercial Litigation as well as Insurance Law.

Stefanus Malherbe specializes in property developments and commercial litigation.

Jurgens Tubb focuses  on property law and estate planning and oversees the bond department.

Chris Faure specializes in litigation and general property transfers.

Our credo, unchanged since 1999, is to be available to our clients and deliver professional service in a professional environment. We are focused on delivering outstanding service.

The unique interests of each client is our passion and it will continue to be so. Our commitment is our guarantee.

Thank you to all our loyal clients who have brought us thus far and we look forward to the next 19 years!

 

IS MY PERSONAL INFORMATION SAFE?

IS MY PERSONAL INFORMATION SAFE?

I made use of a company on one occasion and do not actually need their services in future. However, I am worried about the personal information which I provided them in the course of my dealings. I do not want them to share my information with advertisers or sell it to another company. How does the law protect me?

The fundamental legislation regulating this issue is the Protection of Personal Information Act 4 of 2003 (“POPI”) which, as the title alludes, regulates the processing of personal information in order to protect individuals’ constitutional right to privacy. The Act is not yet in force, even though it has been signed into law since 19 November 2013. However, once POPI comes into effect, all public and private bodies who process (collect, store, transmit, alter, delete, etc.) personal information will have 1 year to comply with the requirements of the Act.

POPI requires that all personal information be processed on the basis of core principles, failing which the processing of personal information will be unlawful. The Act requires accountability from all private and public bodies which process personal information. The Act further only allows for limited processing of personal information i.e. the processing must be reasonable, lawful and minimal. In other words, personal information may only be processed where this is relevant to the purpose for which the information was collected and it must further not be excessive so as to infringe the privacy of the individual.

Furthermore, the information must be collected only for a “specific, explicitly defined and lawful purpose that is related to a function or activity”. The private or public bodies which process personal information must also take reasonably practical steps to ensure that the personal information is “complete, accurate, not misleading and updated where necessary”.

Importantly, POPI requires that you be notified every time your personal information is collected and you must be informed of the purpose thereof. An individual may also enquire whether an organisation has collected any of their personal information. You may then further request a record of this information, request that such personal information be corrected or even be deleted.

The most important requirement under POPI is that an organisation must keep an individual’s personal information secure. Therefore, the organisation must prevent loss/damage to the personal information as well as prevent unlawful access thereto. Where someone accesses this information unlawfully, the organisation is under a duty to report this. POPI goes so far that an organisation may not, for example, outsource a business function without a written agreement whereby the third party agrees to adhere to the above conditions.

Organisations which do not comply with POPI are committing an offence in terms of which they may be charged with an administrative fine or the information officer of that organisation may be imprisoned.  The fines may not exceed R10 million and imprisonment may not exceed 10 years.

It is evident that POPI goes to great lengths in an attempt to safeguard the privacy of individuals. Naturally, this means that great obligations are placed on organisations to lawfully process personal information.

Should you wish to know more about the rights and duties of individuals and organisations under POPI, contact our offices.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

Recruiters should be careful when posting job positions so as not to land themselves in hot water with the Advertising Standards Authority of South Africa (ASA). In a recent incident, a respondent using the industry news website Bizcommunity, had to issue an apology for posting a job position with “Native English Speaker” as a requirement.

Excluding applicants on the basis of language, race or ethnicity

Mr Zibi lodged a consumer complaint against an advertisement which appeared on the website’s job listings. Among the advertised requirements was, “Native English speaking”.

Zibi claimed that the advertisement is discriminatory on the basis of language, which is a violation of the South African constitution and labour law.

The respondent in the matter claimed that the advertisement had already reached its expiry date and that the phrase is common. However, after having had internal talks around the issue, they decided to amend the advertisement to avoid any future types of these complaints. The amendment involved changing the position requirement to “Exceptional English writing and communication skills”, which they believed should address the issue.

Tread lightly

Although it was a small incident, it should not be treated casually, since some people may not be satisfied with an apology. The damage it could potential do to a company’s image should also not be underestimated. A simple error may lead to an extensive amount of time being taken to rectify the problem, which means a loss of money.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

http://www.asasa.org.za/rulings/bizcommunity_khayagroup_mzibi_2017-4843f

 

THE BENEFITS OF CREATING A TRUST

THE BENEFITS OF CREATING A TRUST

Trusts are well-known to facilitate effective estate planning and continuity planning strategies. That said, setting up a trust – whether an inter vivos (between the living) or a testamentary (created in a will) – should be carefully considered and not just implemented blindly. 

The difference between testamentary and inter vivos trusts

  1. A testamentary trust is established when a person (the founder) makes provision for establishing a trust in their will. The trust does not come into existence until the founder dies.
  2. An inter vivos trust is set up between the living. In other words, property is transferred before death to the trust by its founder and managed by the trustees for the benefit of another person or persons.

The death benefits of creating an inter vivos trust exceeds the cost – both in time and money. According to The Estate Duty Act, upon death, a duty is levied against your estate known as estate duty. The nett value of any estate will be determined by deducting all liabilities from your assets of your estate, both real and deemed.

Should you create a testamentary trust, upon death the assets are in your name and will need to be transferred to the trust posthumously, meaning all assets are taken into account when assessing the duty payable.

Advantages

Taking the above into account, here are some benefits you could experience from creating a trust:

  1. Reducing estate duty: Inter vivos trusts can be used to minimise estate duty. No estate duty should be payable on assets owned by the trust as a trust does not die.
  2. Protection against creditors: As the trust’s assets are not owned by the beneficiaries, creditors do not have a claim on the assets. This advantage is especially important for people who could be exposed to potential liability. Companies as well as individuals are able to transfer assets into trusts.
  3. Efficient succession: Since trusts never die, beneficiaries will be able to continue enjoying the assets if one beneficiary were to pass away. 

Disadvantages

Despite the advantages, there are also some disadvantages of having a trust. They include the following:

  1. Costs: The costs of setting up a trust can be high. If assets are transferred into the trust, then transfer duty needs to also be paid.
  2. Duties of trustees: Trustees could find themselves personally liable for losses suffered by the trust if it can be proven that they did not act with care, diligence and skill according to Section 9 of the Trust Property Control Act.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

www.iprotect.co.za/articals-trust-info/article-arcives/why-an-intervivos-trust-as-opposed-to-a-testamentary-trust.html
www.entrepreneurmag.co.za/advice/starting-a-business/start-up-advice/should-i-set-up-a-trust
www.findanattorney.co.za/content_inter-vivos-trust

CANCELLATION BY EMAIL

CANCELLATION BY EMAIL

Grantham (Tenant) and Anthea (Landlord) concluded a written lease agreement in respect of a flat situated in Bellville. Grantham was unable to meet certain obligations in terms of the agreement and Anthea suggested in an email that they cancel the agreement. Grantham accepted her proposal and both parties ended their respective emails with their typewritten names at the end of the email. Anthea, however, could not get a new tenant in time and want to hold Grantham liable for the duration of the lease, because she is of the opinion that the cancellation by email is not valid since the agreement required cancellation and variation to be in writing and signed by both parties. She approached MHI Attorneys for advice.

Most standard contracts have a non-variation clause, stipulating that no variation or cancellation would be effective unless reduced to writing and signed by contracting parties. The effect thereof is, should you intend to cancel an agreement, all you have to do is ensure that it is in writing and signed by both parties. However we live in a modern era where electronic communication systems are becoming the standard form to conclude transactions, by utilising emails to negotiate and enter commercial agreements.

These electronic transactions had to be regulated by way of legislation and accordingly the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) was promulgated to provide for the facilitation and regulations of electronic communications and transactions, and to promote universal access to electronic communications. The question that arises in this instance is whether the alleged cancellation of a contract by email is valid, if it is clearly stipulated in the non-variation clause that cancellation should be in writing and signed by both parties.

In Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and Another 2014 ZASCA 178, the parties entered into several written agreements in terms whereof Spring Forest would lease goods from Wilberry. The agreements contained a non-variation clause which provided that variation and cancellation would only be effective should it be reduced to writing and signed by both parties. Spring Forest was unable to meet the certain obligations in terms of the agreement and following negotiations, the parties verbally agreed to cancel the agreements.

The terms of the cancellation and return of the machinery were recorded in various emails between representatives of the parties, with their names appearing at the end of their respective emails.  Spring Forest then entered into a new agreement with another entity (Combined Motor Holding Limited) to conduct the same business. Wilberry applied for an interdict to prevent Spring Forest from conducting its business and argued that the agreements were not validly cancelled. The High Court held that the email communications did not evince an intention to cancel the agreements, but only recorded the negotiations between the parties, and in any event the parties did not specify that their agreements could be cancelled by exchange of emails.

The Supreme Court of Appeal in considering the matter, took cognisance of the provisions of ECTA, specifically section 12 and 13 of the Act. Section 12(a) of ECTA stipulates that a legal requirement for an agreement to be in writing is satisfied if it is in the form of data messages, and data messages can be defined in terms of the ECTA as data generated, sent, received or stored by electronic means. Therefore the emails between the parties were governed by ECTA and the Supreme Court of Appeal held it was not in dispute that the emails between the parties fulfilled the requirement that the cancellation of the agreements must be “in writing”.

The real dispute and/or issue was whether the names of the parties at the end of their respective emails constituted signatures as contemplated by Section 13 of ECTA. Section 13(3) stipulates where an electronic signature is required by the parties to an electronic transaction and the parties have not agreed on the type of electronic signature to be used, that requirement is met in relation to a data message if; (a) a method is used to identify the person and to indicate the person’s approval of the information communicated; and (b) having regard to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.

The Court held that the parties clearly manifested a written intention to cancel the agreement and it was evident from the respective emails between the parties. Neither the terms of the written agreement or the respective emails stipulated the form that the signature was to adopt, therefore Section 13(3) applied to the cancellation of the agreements. The Court concluded that the typewritten names of the parties at the foot of the emails, were sufficient to identify the users and complied with the provisions of Section 13(3) of ECTA, thereby constituting a signature by the parties.

In the Spring Forest case the court took the approach of being pragmatic and practical about the issue rather than being formalistic, in order to ensure effective interpretation and application of the law.

It is best to consult with your MHI Attorney before concluding written agreements to ensure that your rights are protected.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

 

DETERMINING THE GROUNDS FOR INFORMED CONSENT

DETERMINING THE GROUNDS FOR INFORMED CONSENT

If a person gives consent without acknowledging, understanding and considering their rights beforehand, is their consent legal and permissible in court? In eviction proceedings, it is questioned whether the granted eviction order may be cancelled after the unlawful occupiers had allegedly consented to it.

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.

A block of flats, Kiribilly, situated on erven 87 and 88 in Johannesburg was unlawfully occupied by 184 residents consisting of low income earners and unemployed occupiers, where some occupied the residence for a period of 26 years.

The said property was purchased from M L Rocchi, whose attorneys served the unlawful occupiers a letter notifying them of the termination of their right of occupation. The occupiers approached Mr Ngubane to speak on their behalf, and he confirmed with the court that the matter had been settled, as the respondents had been informed.

The High Court granted an order, which was allegedly agreed upon by both parties, to have the occupiers evicted from the property. The question is whether the order is bona fide based on the nature of the consent.

Legislation

Contesting the order’s legal validity, the applicants submitted that, even if the consent was legally valid, the Court was under constitutional and statutory duties to provide that the eviction would be just and equitable.

Respondents submitted that the applicants failed to provide a defence as to the entitlement of remaining in occupation of the property, thus making the order just and equitable, as stipulated by Section 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act which says, “If the court is satisfied…that no valid defence has been raised by the unlawful occupier[s], it must grant an order.”

Validity of eviction order based on consent 

For consent to be legally effective, it must have been given by the applicants freely and voluntarily with the full awareness of the rights being disregarded. Given that the applicants were not aware of their rights, the factual consent that they allegedly gave was uninformed, therefore not legally binding. Because all information with regards to the conditions of the occupiers was not presented to the courts, the consideration of all relevant factors is disabled, rendering the order invalid. Above all, no information was given as to where the unlawful occupiers would go after the eviction.

Conclusion

In a matter where there is a person claiming to speak on behalf of illegal occupiers in a court appearance, any agreement that s/he has made is not binding to the occupiers because s/he is not the legal representative, nor an occupier. Any statements he makes in court are legally inconsequential, and thus nullified as giving informed or legal consent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O. [2017] ZACC 18