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November 28, 2021

WHEN CAN A LANDLORD USE A DUPLICATE SET OF KEYS TO ENTER LEASED PREMISES?


 

A CLIENT ASKED: As a landlord/owner, is it their right to have a set of keys to an apartment they are renting out? I read somewhere that in an emergency, fire or burst pipe, it is the landlords right to be able to enter (but only in the case of an emergency) and in all other instances, they need permission to enter to inspect. Is there a law re this? 

The short answer is that the landlord should have a duplicate set of keys, provided he or she doesn’t invade the privacy of the tenant and only uses the keys in a case of emergency. To avoid doubt, this is a provision that should be included in a lease agreement. 

In terms of the Rental Housing Act, 1999, as amended, it is an offence that may result in the imprisonment of the landlord or a fine (although imprisonment is highly unlikely) if the landlord, amongst other things, provides the tenant with a dwelling that is uninhabitable or fails to maintain the leased premises. 

A landlord may not enter leased property without giving a tenant reasonable notice and then only to inspect the property, to make repairs to the property, to show the property to a prospective tenant, purchaser, mortgagee or its agent or if the property has been abandoned or having obtained a court order. 

What about situations of sudden emergency? 

A landlord may well need a key in order that he may be able to enter quickly in the event of emergency – fire, burst pipes or whatever. He may need a key to enable him or those authorised by him to read meters or to do repairs which are his responsibility. 

I would suggest that a landlord should indeed hold a set of keys, to carry out necessary repairs expeditiously, with the permission of the tenant – in the ordinary course, and without his or her permission – in the case of emergency. 

I fail to see how the landlord can carry out the works “expeditiously” if the landlord does not hold a key. 

An agreement of lease should contain a clause dealing with Lessor’s rights of entry and carrying out of works that contains not only the usual rights of the landlord (or his agent) to enter the premises to inspect them, to carry out any necessary repairs, replacements, or other works, or to perform any other lawful function in the bona fide (good faith) interests of the landlord or the tenant, provided that:


  • The tenant’s right to privacy cannot be violated during the lease period;

 

  • Should the landlord wish to inspect the property, reasonable notice to the tenant must be given;

 

  • The landlord shall hold duplicate keys to enter the premises without notice, only in the event of emergency – fire, burst pipes or whatever – and if the tenant is not available to seek his prior permission. The landlord must handle the keys in a proper and responsible manner. 

Without such written permission to hold keys and enter the premises to deal with a burst pipe, the landlord will have to exercise his discretion in good faith in the interests of the landlord or the tenant. That could lead to later legal arguments.

 

November 26, 2021

When a buyer can claim damages for a leaking roof

 


A client asked: I recently bought a house and on taking occupation I noticed that there was a bad leak in the roof that the seller never told me about. I complained to the agent, and she told me that as the deed of sale contained a voetstoots clause there was nothing I could do. What are my rights? 

The voetstoots clause in a contract bars a buyer from complaining as he or she buys the goods (in this case a house) as is, in the condition in which it is found. 

However, a seller is deprived of the protection of a voetstoots clause in circumstances where the seller perpetrated a fraudulent non-disclosure or fraudulent misrepresentation. 

Our law sets out when a buyer can successfully sue a seller, despite the voetstoots clause. The buyer must show that: 

·      The roof of the property suffered from a defect, and

·      The seller was aware of the defect in the roof, had a duty to disclose the defect to the buyer and failed to disclose the defect, thereby committing a fraudulent non-disclosure, alternatively misrepresentation.

If the buyer establishes that the seller intentionally failed to disclose the defects in the roof and that he would not have entered into the sale agreement if he had been aware of the defects, the buyer would be entitled to the reasonable costs of repairing the roof and other concomitant loss he may have suffered.


November 17, 2021

More about legal costs

 


A client asked, “If I win my case will I get back all the fees I paid you?” 

Types of legal costs

There are three types of legal costs:

Party and party costs

These are the costs that a court will award the successful party in a court case. The losing party must pay these costs. They can be agreed or taxed. Taxed costs are those assessed by the Taxing Master of the court you sued out of.  The bill of costs is based on the applicable Magistrates’ or High Court tariffs laid down by law. You would proceed out of the Magistrate’s Court or Regional Court for matters up to R400 000. For claims above that amount, one would sue out of the High Court.

Your attorney will ask you to sign a fee agreement setting out the hourly rate of the attorney and his or her support staff. The agreement will make it clear that the rates are not according to tariff but are on an attorney and own client basis.

Even if you win the case, you will normally only recover the party and party costs and will have to pay your attorney his costs in full. These costs will always be more than the laid down tariff, so you will be out of pocket by the difference.

Attorney and client costs

If a court wants to show its displeasure about a defendant’s conduct during a trial, it may order the defendant to pay attorney and client costs. This is called a punitive costs order and is rare.

Such order obliges the losing party to pay party and party costs plus certain other legal costs, including costs for attendances between you and your attorney.

Of course, if the case is of a contractual nature and the contract has a clause that obliges the losing party to pay attorney and client costs, the court would make such a costs order.

Attorney and “own” client costs

Attorney and “own” client costs are the actual fees and disbursements a client pays his attorney in terms of their fee agreement. Such a costs order is equally rare.

In extreme cases, a court may punish the defendant's lawyer and order him or her to pay the costs de bonis propriis (out of his or her own pocket).

 

THE PROCESS TO WIND UP A DECEASED ESTATE

 


·      If your loved one passed away in a hospital, the medical practitioner will complete a BI-1663 form (notification of death) to certify the death. You will receive a copy.  If your loved one did not pass away in a hospital, the mortician will complete the form and hand it to the next of kin. You must take the BI-1663 form, with the deceased’s original valid South African identity card to the Department of Home Affairs who issues a death certificate. The funeral home or the Department of Home Affairs stamps ‘Deceased’ on the identity card or document of the deceased and punches a hole in the identity card. 

·         The estate of a deceased person must be reported to the Master of the High Court’s office in the area where the deceased lived. within 14 days from date of death. The following documents, where applicable, will also be required: 

ü  An original or certified copy of the Death Certificate and Identity Document.

ü  An original or certified copy of the marriage certificate.

ü  A declaration of marriage by the surviving spouse indicating the type of marriage.

ü  The original will and any annexures that may apply.

ü  A completed next-of-kin affidavit if there is no will in place.

ü  A completed inventory form.

ü  A declaration to confirm that the estate has not been reported at another Master’s office.

ü   

·         For estates valued at more than R250 000: 

ü  If an executor is not specified in the will of the deceased, the Master will appoint one on the deceased’s behalf. The family may also nominate an executor if there is no will. 

ü  The person nominated to wind up the estate (the executor or his or her agent – normally a lawyer, accountant, or trust company) reports the estate at the offices of the Master, who issues Letters of Executorship in favour of the executor or executrix, authorising him or her wind up the estate. 

·         For estates valued at less than R250 000 

ü  The Master will appoint a Master’s representative and will issue Letters of Authority (where the requirements are less stringent).

 

  • On receipt of the Letters of Executorship, the executor arranges the publication of a notice to creditors in a local newspaper and government gazette, inviting them to submit any claims against the estate, within 30 days.

 

  • Within 6 months of the issuing of the Letters of Executorship, the executor must submit an estate account (liquidation and distribution account) to the Master. This account gives effect to the wishes of the deceased in his will (or the laws of intestacy if there is no will).

 

  • Once the Master approves the account, the executor has it advertised and that it lies for inspection for 21 days. If no objections are received within 21 days, he or she pays out the heirs and beneficiaries, and transfers any fixed property. 

The following words are commonly used when dealing with deceased estates:

 

  • Estate – the deceased’s assets and liabilities property at the time of his or her death
  • Testator – a man who makes a will
  • Testatrix – a woman who makes a will
  • Dying testate – when a person dies leaving a will
  • Dying intestate – when a person dies without leaving a will
  • Executor – a man who distributes the estate under a will
  • Executrix – a woman who distributes the estate under a will
  • Letters of Executorship – letters issued by the Master, authorising the executor to wind up the estate 

An executor makes sure that a deceased’s last wishes are adhered to regarding the distribution of his/her property and possessions.

He or she must also ensure that all the deceased’s debts are paid off. Any remaining money or property (called the residue) can then be distributed according to the deceased’s will or, if there is no will, in accordance with the Intestate Succession Act, 81 of 1987.

 

 

November 16, 2021

What is a usufruct?

 


The English word usufruct derives from the Latin roots usus and fructus, from verbs meaning to possess and to have the benefit of, respectively. 

A usufruct is a right given by an owner to someone else to use the owner’s property for a limited time, usually for a person’s lifetime. The holder of a usufruct, known as a usufructuary, has the right to use (usus) the property and enjoy its fruits (fructus), but does not acquire ownership of the property, known as the bare dominium. 

An example of a usufruct is where a husband in his will leaves his home to his children but directs that his wife has the use of the house and the furniture in it for her lifetime (or some other period, e.g., until she remarries). In this example, on his death the property will be transferred into the name of the children and the usufruct is simultaneously registered against the new title deeds in favour of his surviving spouse. 

Rights and obligations of the usufructuary 

In the above example, the wife: 

·         has the right to use and enjoy the property 

·         can let it out and earn the rental income 

·         cannot sell the property, mortgage it, or leave it to someone else in her will

 ·         must ensure that the property is maintained and is not altered or damaged in any way. She must pay the property rates and general day-to-day costs of maintaining it. The husband should leave enough money, possibly in a separate account, to ensure that the property is maintained and that his wife has enough money to pay for the rates and other property expenses 

·         is not obliged to do any extensive repairs that result from normal wear and tear or daily use. While there is no obligation for the usufructuary to insure the home against storm, fire, or other such damage, it is advisable and in her own interests to do so

 

·         may make improvements to the property but may not claim reimbursement when the usufruct ends. 

·         has the right to occupy and use the property until her death or remarriage, when the usufruct would lapse, and the full property rights would automatically vest in the children. 

Tax benefits 

Often, a usufruct is created to reduce the amount that the testator’s estate will have to pay in estate duty. While the children become the owners of the property, the estate duty liability is greatly reduced because the usufruct, which needs to be valued, passes to the surviving spouse free of estate duty, while the bare dominium is no longer the full value of the property but the difference between the property value and the value of the usufruct. 

A usufruct can also be created in a notarial deed of cession or retained by the seller when selling a property to reduce the amount of estate duty or transfer duty payable. When this is considered, it is important to be aware of the possible tax implications for the parties involved, both in the short and long-term.

 

November 11, 2021

Enforceability of a prenuptial executory donation



 

DB v CB 2021 JDR 0896 (GP) 2021 JDR 0896 (GP) 

Marriage — Divorce — Proprietary consequences — Marriage out of community of property — Antenuptial contract — Enforceability of prenuptial executory donation with terms contradicting those of parties' antenuptial contract — Enforcing such inconsistent with court's discretion under Divorce Act 70 of 1979, s 7(2). 

The parties’ ante-nuptial contract (ANC), which was registered 15 January 2015, records that they were married out of community of property and excluding accrual. 

On 15 February 2015, the parties concluded a written agreement, referred to as the 'B agreement' that recorded the donations that the husband agreed to make upon dissolution of their intended marriage, either by divorce or death, namely a residential dwelling, a motor vehicle and life-long maintenance. 

The parties married each other on 19 May 2015. 

The marriage ended and the wife asked the court to enforce the B agreement. 

The parties had received advice to apply to court to vary the terms of the ANC in terms of section 21 of the Matrimonial Act, which they did not do either before or after it was registered. 

The court accepted the husband’s argument that the B agreement, the terms of which are antonymous to the ANC, cannot be enforced because it was an attempt to settle a divorce before their marriage was concluded; and enforcing the B agreement alongside the registered and legally enforceable ANC, which is binding not only inter partes but on third parties, was an attempt at varying or amending the ANC, which is legally impermissible. 

Sections 7 (1) and (2) of the Divorce Act provide: 

'(1) A court granting a decree of divorce may in accordance with a written agreement between the parties, make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other (own underlining) 

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.' 

In terms of sections 7 (1) and (2) the authority to make orders in respect of matters such as maintenance, even where the parties have agreed, vests with the court. 

The judge found that “In the present case, we are not dealing with a waiver of maintenance but an executory donation with terms that are contradictory to those of the parties' ante-nuptial contract …A cursory perusal of the B agreement will confirm that it is concerned with, inter alia, maintenance of the respondent. The net effect of the court a quo's holding that the B agreement is enforceable, and can be read with the antenuptial agreement, is that instead of a court exercising its discretion as is required in terms of section 7(2), the respondent will end up with an order of life long maintenance, couched as a donation, where no agreement existed in terms of section 7 (1) and in circumstances where the court would effectively have been ousted from exercising its discretion in terms of section 7(2) of the Divorce Act. Such a result cannot be countenanced. On this score, the court a quo erred. The ineluctable conclusion we reach is that the B agreement cannot be enforced”. 

The court further held that “...But such a conclusion is legally untenable in the face of the requirements of section 21 of the Matrimonial Property Act. This is so because the B agreement introduces terms that are contradictory to the antenuptial contract. Before marrying each other, and by following the relevant provision of the Deeds Registry Act, the parties could have effected changes to the ante-nuptial contract via registration with the registrar. Having decided to marry without introducing the donation terms to the registered ante-nuptial, the only option for the parties to achieve what they now seek, was to apply to court for an amendment of the terms of their ANC, in terms of section 21”.

 

 

November 08, 2021

When is an employer liable for sexual harassment in the workplace?

 


The Labour Court addressed the question of the employer's vicarious liability in National Union of Metal Workers of South Africa and Another v Passenger Rail Agency of South Africa JS1071/18 (23 September 2021) (the PRASA case).

The judge found that “this matter turns on the application of section 60 of the EEA [Employment Equity Act 55 of 1998]. In my view, this section is a codification of the common law principle of vicarious liability. Vicarious liability occurs in an instance where the wrongful acts of an employee during the course and scope of employment are imputed on the employer”.

60.   Liability of employers.

(1)  If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee's employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2)  The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3)  If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4)  Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.

In the PRASA case the court found that two of her managers had indeed sexually harassed a PRASA employee. However, it concluded that the employer was not vicariously liable for its managers’ conduct.

The court considered the circumstances under which an employer is deemed to be a perpetrator of unfair discrimination under section 60 of the Act, notwithstanding the fact that an employee committed the sexual harassment and not the employer.

The court set out the steps an aggrieved employee should take to report a section 60 complaint. They must:

  1. Allege a contravention at the workplace,
  2. Report the contravention immediately,
  3. Prove the alleged contravention,
  4. Allege and prove the employer’s failure to take the necessary steps.

Only if an employee proves these four steps will they be entitled to a deeming order of liability. In order to escape liability, the employer must prove that it took the necessary preventative steps.

The judge found that the employee failed to meet the criterion of reporting the contravention immediately within the contemplation of section 60(1) of EEA. She only lodged a grievance two to three years after the sexual harassment took place. As a result, the employee failed to demonstrate step two as set out above.

Given the delay, the court found that PRASA had been deprived of its statutory duty to eliminate unfair discrimination and thus did not contravene section 60.

November 03, 2021

What are the requirements for a valid will if one cannot sign his/her name?


If you are unable to sign your Will, you may ask someone to sign the Will on your behalf or you can sign the Will by the making of a mark (a thumbprint or the making of a cross). When the Will is signed by someone on your behalf or by the making of a mark the requirements for a valid Will are as follow:

  1. The testator/testatrix must sign the Will at the end thereof by the making of a mark, or the Will must be signed by some other person in the presence and by the direction of the testator/testatrix.
  2. The mark or the signature of the other person signing on behalf of the testator/testatrix must be made in the presence of two or more competent witnesses and a commissioner of oaths.
  3. The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other and if the Will is signed by the other person, also in the presence of such other person and a commissioner of oaths.
  4. If the Will consists of more than one page, each page other than the page on which it ends must be signed by the testator/testatrix or by such other person anywhere on the page. (Although the testator / testatrix must sign all the pages of the Will it is only the page on which the Will ends, that needs to be signed at the end of the Will).
  5. A commissioner of oaths must certify that he/she has satisfied himself/herself as to the identity of the testator and that the Will so signed is the Will of the testator.
  6. The commissioner of oaths must sign his/her certificate and he/she must also sign each other page of the Will, anywhere on the page.

Is a copy of a will valid?

 


Because of Covid, my late father never signed his latest will. Will I have to wind up his estate based on his earlier signed will or can I rely on the later unsigned one?

A will is a document in which a person sets out how his or her belongings are distributed in accordance with their wishes after their death.

For a will to be valid it must comply with the formalities set out in the Wills Act 7 of 1953 (the Act).

The requirements for a valid Will are as follows:

  • The “testator” or “testatrix” (the person who makes a will) must be over the age of 16 (sixteen) years and mentally competent.
  • The Will must be in writing. This means that a will can by typed or handwritten. If the Will is handwritten by someone else for the testator, that person cannot be a beneficiary in the will
  • Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.
  • The signature of the testator/testatrix must be made in the presence of two or more competent witnesses.
  • The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other.

What happens if the will is lost, destroyed, or never signed?

Section 2(3) of the Act:

‘If a Court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)’.

 

In terms of our law of succession, the Master of the High Court will only accept as valid a will that complies with all the formalities of the Wills Act. If an original will is lost or destroyed and only a copy of the original will available, a person that wishes to rely upon such will must apply to court for an order declaring that the copy of the original is valid for purposes of administering a deceased estate. The same principle will apply to an unsigned will.

 

An applicant will have to prove:

 

1.     That the will was lawfully executed.

2.     The circumstances in which the original will was lost or destroyed (or never signed) or that a diligent and sufficient search for the original will was made with no success.

3.     That the deceased had no intention of revoking the will.

4.     That the disputed testamentary document is a true copy of the missing original will and that it contains true wishes of the last will so executed.

 

Only if the court is satisfied that the copy of the will is valid and represents the intentions of the testator, may the court order the Master to accept the copy of the will as valid and to be used for purposes of administering the estate.

 

The court will require the applicant to set out all the facts in an affidavit, but it may also require oral testimony. The degree of proof required will depend on the circumstances of each particular case. The factors that the court would consider are: “Was the missing original will innocently lost? If so, has a diligent and sufficient search been made to trace it? This is the one scenario - innocent loss. Was the missing original will deliberately destroyed? If so, was it destroyed on purpose by the testator as an act of revocation or mischievously spirited away by a disgruntled potential beneficiary as an act of dishonesty or spitefully shredded by a third party with an ulterior motive? This is the other scenario - purposeful destruction”.

 

In every case the final outcome depends on the overall evidence presented to the court by the claimant who must, on a balance of probabilities, prove the case in order to be awarded judgment.

 

It is a good idea to sign three original copies of your will, one for you, one for a close family member and one for the person that helped you draft the will.