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September 14, 2017

Landlord harassing a tenant?

What rights do I have when a landlord victimizes me as a tenant?

You should take the matter up with the Rental Housing Tribunal, who offer their services free of charge. Click here to find out more about your rights as a tenant, and residential leases: https://goo.gl/QkPd8f

Provincial Rental Housing Tribunal contact list:
Gauteng – 011 630 5035
Western Cape – 021 483 4190
KwaZulu Natal – 031 336 5300/5222
North West – 018 387 6057
Limpopo – 015 294 2241
Mpumalanga – 013 7666 200
Northern Cape – 053 830 9444 / 9544

September 09, 2017

Does my mom’s power of attorney endure if she can’t manage her affairs?


A person has full contractual capacity if he or she can conclude a legally binding contract. A party’s contractual capacity may be affected by mental illness, intellectual disability, physical disability, head injury, an extended period of unconsciousness, stroke or extreme old age, etc. 
In some countries, a person can make an Enduring Power of Attorney for his or her property or personal care and welfare. The Enduring Power of Attorney for property will take effect at any time or only if the person becomes mentally impaired. The Enduring Power of Attorney for personal care and welfare will only begin when he or she is no longer capable of making personal decisions to deal with their own affairs, due to any of the above reasons. 
In South African law, there is no such concept. If you execute a special (for limited purposes) or a general (an all-encompassing) power of attorney in favour of someone (called your agent) the agent’s authority to act under that power of attorney ends on your death, insolvency or incapacity (where you are unable to make rational decisions or are incapable of managing your own affairs).
So, if the power of attorney ends, what’s next?
If the value of your mom’s estate exceeds R 200,000 and his annual income is more than        R 24,000, then we must apply to court for the appointment of a curator bonis or curator ad personam, to manage her affairs. This is a hugely expensive business.
The term “bonis” means “goods” (as in assets) in Latin. A curator bonis is concerned only with the financial affairs of the person. The curator ad personam (often the same person) is a person appointed by a court to manage the day to day personal affairs of a person unable to do so because of mental or physical incapacity.  The term “ad personam” means “for the person” in Latin. 
If her estate and income, is less than R 200,000 and her annual income is below R 24,000, we can apply to the Master of the High Court in terms of the Mental Health Care Act, firstly to declare that your mom is mentally ill, and then for the appointment of administrator (usually an attorney) to care for and administer the property of the mentally ill person. This is a simpler and cheaper process.

September 02, 2017

Can new owners be held liable for historic municipal debt on their property?

In the case of Jordaan v Tshwane municipality, the Constitutional court handed down a judgment on 29 August 2017, dealing with the constitutional validity of S118(3) of the Local Government Municipal Systems Act, which provided that “an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property”.
The Constitutional Court had to decide if this provision allows a municipality to claim the debts of a former owner from the new owner, and if so, whether this provision was constitutional.
In this case, the applicants approached the High Court (and won) by alleging that it was unlawful for a municipality to suspend municipal services or refuse to conclude a consumer services agreement for municipal services until the historical debts relating to the property had been cleared.

The municipality appealed to the Constitutional Court and lost. The court found that:

·         while a municipality has the constitutional obligation to collect revenue and pursue debtors, it can only claim the money from the actual debtor (previous owner) and cannot claim the historic debt from the new owners;

·         holding the new owners liable for the debt was an arbitrary deprivation of property.

Presumably, this outcome will open the floodgates to many actions against the municipalities that recovered historic debt from the new owners.  

August 19, 2017

Must a contract be in writing to be binding?

Elements of a contract
·         A contract consists of an offer by the offeror (the seller or service provider) to the offeree (the buyer or client) to buy goods (movable or immovable) or services, for an agreed price or fee;
·         A contract becomes binding when the offeree accepts the offer;
·         Obviously, there must be agreement as to what is being offered;
·         There must be an intention to contract freely and voluntarily. Any misrepresentation by either party will render a contract void. Anyone who is coerced or bullied into signing a contract will have a defence of duress.
·         The person who wants to conclude a contract must also satisfy certain legal requirements:
o    He or she must have mental and contractual capacity. This means that the person must be sane and not under the influence of any drugs or alcohol which could affect his ability to fully appreciate what he is agreeing to;
o    He or she must be a major (18 years or older) unless his parents or guardian assist him;
Oral or written
As a rule, parties can do a deal with a handshake, or even orally.
However, in South Africa, there are a few contracts that must be written to be enforceable:
·         An agreement to sell immovable property (land, house or building);
·         Suretyship agreements, credit agreements, antenuptial (marriage) contracts, leases over ten years, and contracts for executionary donations (to be made later);
·         Wills.
Some contracts, both oral and in writing, may not be enforceable, e.g. if they are illegal, contra bonis mores (that means against public policy or norms) or impossible to perform.
Importance of written contracts
Why is it important to reduce a contract to writing, even if you don’t have to, in law?
·         It’s easier to prove the existence of a written contract;
·         Written contracts provide individuals and businesses with a legal document stating the expectations of both parties;
·         If a party breaches a term of the contract, the consequences of a breach and the remedies, are set out.
Contracts in business
·         Written contracts are for your protection;
·         A business contract states the terms and conditions of any business transaction, including product sales and delivery of services. This helps the parties involved avoid any type of misunderstanding that may arise, in the absence of a written contract;
·         If you use written contracts, it is far less likely that you will end up in court - your clients will be much more inclined to work with you to find a solution and work things out.;
·         If you have an oral agreement, you might forget some points that you have agreed on verbally, with the passage of time. But with a written agreement, all the terms and conditions are clear, and you can always amend the agreement with the consent of both the parties.
·         Companies also can use non-compete agreements to limit the type of services offered by former employees who have specific knowledge about the company’s specialized business services.
Termination of a contract
·         Some agreements terminate automatically after a fixed term (such as a property lease) or event (fixed term employment contract),
·         Parties to an agreement that carries on for an indeterminate period, can mutually end a contract if the business relationship has ended;
·         An oral contract can be terminated, verbally;
·         Parties should formally terminate a written contract, in writing.
·         If a party is in breach of a written contract (e.g. the goods sold are defective or the services provided, are poor), the other party has the remedies set out the contract, or at law (such as the Consumer Protection Act);
·         Some contracts require the one party to give the party in breach written notice to remedy the breach, before the first party can cancel.   
·         Termination will not affect any liabilities for breach of contract that occurred before the contract is ended.

August 11, 2017

All about annual leave

With the December break just around the corner, I thought that this snippet would be useful.

·         The provisions in the Basic Conditions of Employment Act that apply to annual leave do not apply to an employee who works less than 24 hours per month or to employees who earn above the earnings threshold laid down in the Act (currently as from 1 July 2014, R205 433.30 per annum);

·         Employees are entitled to 21 consecutive days annual leave on full remuneration, in respect of each annual leave cycle;

·         If an employee works a five-day week, this is equal to 15 working days (or 1,25 days per month);

·         If the employee works a six-day week, this is equal to 18 working days (or 1,5 days per month);

·         Working days exclude public holidays. Whilst an employee is on annual leave, and a public holiday falls on a day on which the employee would ordinarily work, then the employee is entitled to an extra day annual leave for each such public holiday.

·         For temporary employees, or fixed term employees, the parties may agree that annual leave may be calculated on the basis of 1 hour of annual leave on full remuneration for every 17 hours (alternatively 1 day annual leave on full remuneration for every 17 days) on which the employee worked or was entitled to be paid;

·         The employee is entitled to take whatever leave he has accumulated in an annual leave cycle, on consecutive days. If an employee does not take a portion of leave during an annual leave cycle, the leave is automatically carried over to the next annual leave cycle, unless the parties agree otherwise. An employee can demand to take the carried over leave if he or she has still not taken his annual leave from the previous cycle within six months of the new cycle, and the employer may not refuse such permission.

·         If an employee is on annual leave and falls ill during that period, if she produces a doctor’s certificate that she was unfit for work during that time, she is entitled to additional annual leave for each such day. What this means is that the employer must credit that employee’s annual leave with the number of days sick leave, and debit the employee's sick leave.

·         The employer may not force an employee to take annual leave during any period of notice, and the employee is prohibited from taking annual leave during any period of notice.

·         Absent an agreement between employer and employee as to when annual leave can be taken, it is taken at a time to suit the employer. Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilize his annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.

·         An employee can’t take cash in lieu of annual leave except upon termination of employment.