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February 06, 2016

Body corporate insurance excess

I have a possible leak in the damp wall joining me and the next door flat. The body corporate state that if insurance covers, I am responsible for the excess. Also, they are trying to make as if they "help" me by arranging a plumber for which they say I will have to pay if there is no burst pipe, but just a leak or some other cause. However, I believe this wall is a common property as I share it and so are pipes that could be leaking from inside?
In terms of the provisions of the Sectional Titles Act the wall between 2 sections is not in fact common property but forms part of each respective section - from the section to the median line of the wall.

If it is a cold water pipe that has burst between the sections it is however the Body Corporate’s responsibility to repair the pipe, however any damage caused to the inside of your section would be covered by insurance and, once again in terms of the Act, unfortunately the excess payable in terms of the policy would be for your cost as the owner of the section.

This answer was provided by my associate, Karen Bleijs, a sectional title expert.

February 04, 2016

Private sale - voetstoots got the boot?

I sold a car on 26/01/2016 privately to a buyer who signed a contract stating that the sale is "as is" and that no warranties or guarantees can be given. He now claims that he has experienced problems with the radiator. He claims he has 7 days to report the problem to me and that I must fix it or he will take me to court. Does this 7 days policy really exist? What is your advice to me? I did not misrepresent the car before sale as there were no problems while in my possession. 

There is some confusion concerning the validity of voetstoots clauses (literally, "with a shove of the foot") in private sale agreements. Most people think that the Consumer Protection Act (CPA) has made such clauses invalid. 

The CPA would protect a buyer who buys a car from a dealer. However, a private sale of property is not a transaction which falls within the ambit of the CPA, as you were not acting within the ordinary course of your business, and therefore the common law position applies.

A 'transaction' in terms of the CPA refers to agreements concluded in the ordinary course of business by a supplier and a consumer.  

On that basis, in my opinion, the ‘as is’ clause binds the buyer. 

The cooling off period (allowing a buyer to change his mind within 5 days) only relates to a sale that resulted from direct marketing, which does not apply in your case. 

See this article for a more detailed explanation.

February 02, 2016

Adultery – can I sue the mistress?

Q  I would like sue the mistress for alienation of affection. Can you help?

A  In a judgment handed down by the Supreme Court of Appeal on 25 September 2014, in the case of RH v DE (Case No:  594/2013), the court found that “the action derived from the actio iniuriarum and based on adultery, which afforded the innocent spouse a claim for both contumelia and loss of consortium, is no longer wrongful in the sense that it attracts liability and is thus no longer available as part of our law”.

For more detail, please see the article on my website.

January 31, 2016

Social Media and Your Employees – The Risks

Gareth Cliff, etc, and the recent social media storm.

What does Social Media mean?

Wikipedia defines Social media as "interactive platforms via which individuals and communities create and share user-generated content”. Essentially, people interact with each other through Facebook or Twitter (and other networking platforms) and convert text communications into active dialog.

Social networking is pervasive and ubiquitous. Facebook has over 1 billion, and Twitter some 595 million users.

Employees’ Use of Social Networks
Facebook (and other social media) users connect with their “friends” and hundreds or thousands of people view posts or read tweets.

The problem is that your employees may innocently or deliberately post communications concerning their fellow employees, your business practices or even confidential information about your business.

Whether their intention is innocent or malicious, the information may be read by a rival business. The potential risk is obvious.

There are many labour cases which confirm the fairness of dismissals of employees who made disparaging comments about their employers or colleagues on social media. Rather than take evasive action, employers should be proactive about preventing employees from making inappropriate remarks on social media even if the remark is not related to his or her employment.
Rather than having to resort to disciplinary action, after the event, it is far better to have a social media policy in place, which your employees know about and must adhere to, or face the consequences. You really need to emphasise the confidentiality obligations of employees, to minimise business risk and exposure to claims for, say defamation, if, for example, an employee posts a racist or untrue remark that thousands read.

You need to educate your staff and control risks. It is essential to revisit your employment contracts, dealing with such things as whether or not you allow the use of social media in the first place and, if so, what may or may not be communicated.

Ask your attorney to devise a social media policy for your company.