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Category: Litigation

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

ALTERNATIVES TO LITIGATION – THE NATIONAL CONSUMER TRIBUNAL

ALTERNATIVES TO LITIGATION – THE NATIONAL CONSUMER TRIBUNAL

A1The advent of consumer protection in South Africa has brought with it various institutions that are working at full speed to ensure the rights of the consumer are protected. This new era of consumer protection has seen the birth of the National Consumer Commission and the National Credit Regulator. Amongst these institutions is the National Consumer Tribunal which was established in terms of Section 26 of the National Credit Act 34 of 2005 (the NCA).

The aim of the Tribunal is to achieve fairness and justice for everyone in the consumer and credit market through the adjudication of disputes about consumer credit and allegations of prohibited practice in terms of the NCA and the Consumer Protection Act.

All sides of an argument are heard before the Tribunal makes a decision. A decision made by the Tribunal carries the same weight as one made by a High Court of South Africa.

Section 137 of the NCA provides that the following parties can lodge a complaint with the Tribunal:

  1. The National Credit Regulator;
  2. A registrant (NCA requires certain entities and individuals to register with the National Credit Regulator for example debt counsellors);
  3. Credit Providers; and
  4. Consumers

A consumer can approach the Tribunal directly in the following circumstances (and on application for various orders including):

  1. To compel a credit provider to produce a statement of account;
  2. For a credit provider to compensate a consumer after the sale of surrendered goods;
  3. For a pawnbroker to compensate a consumer for goods left with a pawnbroker;
  4. To review the sale of goods; and
  5. To review the decision of a debt counsellor not to issue a clearance certificate.

It is vital to note that in terms of the NCA you as a consumer have the right to receive periodic statements of account and also have the right to request certain additional information such as your current balance of account.

Furthermore the NCA specifies in clinical detail the fees and interest which credit providers may charge. Any credit providers that charge in excess of that amount engage in prohibited conduct in terms of the Act.

In circumstances where a dispute regards a complaint about prohibited conduct, the National Credit Regulator, after referral of the complaint, will conduct an investigation. The Regulator can, amongst other avenues available to it, refer the matter to the Tribunal for adjudication thereof.

Consult the website of the National Consumer Tribunal at www.thenct.org.za for more information on the process to follow and to obtain links to all the relevant application forms to complete and submit.

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)