Is your sectional title complex looking a bit tired?

Sectional title maintenance and improvement

Maintenance

The trustees of your body corporate need to maintain the complex (to keep it more or less in its original condition). These items are provided for in a budget that deals with routine maintenance and provision for unforeseen expenses. The trustees normally have discretion to authorise spending on these items. If the maintenance item is out of the ordinary (e.g. you need to spend a large sum to resurface your tennis court) a majority of the owners should approve the expenditure.

Improvements

Sometimes, it may be necessary to improve the property (perhaps to make it appear more modern).  An improvement that is a “must have” is likely to be non-luxurious but one that is a “nice to have” is probably luxurious. The common property of a scheme is owned by all owners in undivided shares. One of the basic principles of co-ownership is that all owners must agree to any significant or change to their property.

Maintenance of the common property, especially in schemes that have been running for a few years, should hold no surprises. Improvements to the common property, on the other hand, are not routine. This uncertainty is unfortunate because while a non-luxurious improvement must almost always be authorised by a special resolution of the body corporate, a difficult thing to achieve, authorising a luxurious improvement always requires a unanimous resolution, an exceptionally difficult thing to achieve.

The trustees are entitled to suggest a non-luxurious improvement but there is a specified procedure that must be followed to get the authorisation. The owners must be notified in writing of the trustees’ suggestion and given 30 days to request a meeting to discuss the proposal. They must be fully informed of the financial implications and, if any owner requests a meeting to discuss the improvement, a meeting must be held and the special resolution taken at the meeting. If the resolution is not taken, the improvement cannot be made. There are two implications to this provision. The first is that if no owner requests a meeting within the required thirty day notice period, the meeting need not be held and no special resolution is required to authorise that particular improvement. The second is that this is one special resolution that must be taken at a meeting and cannot be taken by round robin.

What is POPI all about?

·         The Protection of Personal Information Act ("POPI") was signed into law by the President on 19 November 2013. POPI seeks to regulate the Processing of Personal Information.

·         POPI will have a far-reaching impact on your organisation with severe consequences for non-compliance.

·         POPI will regulate almost everything that companies do with information relating to customers, employees, suppliers, and others, including information already in your possession or under your control.

Personal Information broadly means any information relating to an identifiable, living natural person or juristic person (companies, CC’s etc.) and includes, but is not limited to:

• contact details: email, telephone, address, etc.
• demographic information: age, sex, race, birth date, ethnicity, etc.
• history: employment, financial, educational, criminal, medical history
• biometric information: blood type, etc.
• opinions of and about the person
• private correspondence, etc.

Processing means broadly anything done with the Personal Information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not).

Some of the obligations under POPI are to:

• only collect information that you need for a specific purpose
• apply reasonable security measures to protect it
• ensure it is relevant and up to date
• only hold as much as you need, and only for as long as you need it
• allow the subject of the information to see it upon request

Does POPI really apply to me?

Accountability for compliance rests with a Responsible Party, meaning a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information. Generally the Responsible party must be resident in South Africa or the processing should occur within South Africa (subject to certain exclusions).

There are cases where POPI does not apply. Exclusions include: 

• purely household or personal activity
• sufficiently de-identified information
• some state functions including criminal prosecutions, national security, etc.
• journalism under a code of ethics
• judiciary functions, etc.

Why should I comply with POPI?

POPI promotes transparency with regard to what information is collected and how it is to be processed. This openness is likely to increase customer confidence in the organisation.

POPI compliance involves capturing the minimum required data, ensuring accuracy, and removing data that is no longer required. These measures are likely to improve the overall reliability of the organisation databases.

Compliance demands identifying Personal Information and taking reasonable measures to protect the data. This will likely reduce the risk of data breaches and the associated public relations and legal ramifications for the organisation.

Non-compliance with the Act could expose the Responsible Party to a penalty of a fine and / or imprisonment of up to 12 months. In certain cases the penalty for non-compliance could be a fine and / or imprisonment of up 10 years. 

Image with thanks to www.saica.co.za

What is the legal effect of sending an SMS, instead of a letter, fax or email, to give notice or enforce a contract?

A colleague of mine, Andrew Marshall, of Dingley Marshall Attorneys, wrote this most interesting article: http://www.dingleymarshall.co.za/notice-sms-law/, which he’s happy for me to share.

A “data message” like an SMS has the same status in law as a letter or other “real world” medium of communication. Although there is nothing in law to prevent using SMS, we would recommend avoiding it for anything important, because of the problem of proving receipt.

 “We have all received SMSes from businesses offering their services to us. Often when these messages are unsolicited we consider them to be spam and block the number, or even complain to WASPA or perhaps the DMASA about them. But if we are in a commercial relationship with one of these businesses, can they use SMS to send us notice or to enforce a contract?

The General Rule

As a general rule the law recognises “data messages” (as they are called) such as SMSes as if they were in “written” form. As section 11(1) of the Electronic Communications and Transactions (ECT) Act puts it, “Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message.”

If the law requires that a document or information be in writing, then that requirement is met if a data message is used, and the data message is “accessible in a manner usable for subsequent reference” (s 12 of the ECT Act).

This means that a “data message” like an SMS has the same status in law as a letter or other “real world” medium of communication.

So far so good, but does that mean that a business can send notice of breach if I haven’t paid my monthly account for example? Well that, as lawyers are fond of saying, depends. If the law has particular requirements for notice, then those requirements will trump the general law that the ECT Act sets out.

Before delving in into the detail, let us quickly look at receipt of SMSes. How can a sender show that an SMS has been received? Under the ECT Act it would probably be sufficient to show that the SMS has been received by the recipient’s mobile network service provider and can be accessed by the recipient. There is no case-law on this so this interpretation is not certain, and given that the mobile network service providers can be sticky about providing access to their logs, proof would be an issue. On an alternative interpretation one might need to show that an SMS has been downloaded onto the recipient’s cellphone, but this of course presents the same problem. The sender could certainly keep its own record of SMSes that it has sent, or it could draw logs from its OWN mobile network service provider to show transmission, but it could battle to prove receipt.

With that in mind let us examine a few areas of law.

Requirements of the National Credit Act

If the National Credit Act (NCA) applies to the underlying contract, such as a loan or a hire-purchase agreement, a credit provider wishing to enforce the contract must deliver a notice to the consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights. This letter of demand needs to comply with section 129 of the NCA, which prescribes the form and content of letters of demand for credit agreements.

Section 129 letters must be delivered to the debtor by the creditor, or an attorney acting on his/her behalf, before any legal proceedings can commence. Failure to do so is fatal to any legal proceedings where credit agreements are concerned. The letter itself must be delivered to the debtor at an address set out in the original credit agreement, or subsequently provided to the credit provider.

The NCA is silent on what medium should be used to deliver the document however. The available case-law deals with delivery by registered letter. If notice is not sent by registered mail, the NCA stipulates that notice has only been properly served on a debtor when it has been delivered to that person. However it is difficult to prove delivery of an SMS, as we discuss above. As a result, SMS is probably not an appropriate medium for delivery of these letters.

Delivery of any other document that must be provided to the debtor is dealt with under section 65 of the NCA. While the listed mechanisms include email, SMS is not included. Therefore, it appears that the NCA does not recognise SMS as a valid delivery method for these documents.

Note however that the NCA specifically states that “statements of amount owing” and “statements of settlement amount” CAN be sent by SMS.

Consumer Protection Act

Attorneys drafting the “notices” clause of an agreement normally state that notice is deemed to have been received by a party under certain circumstances. So for example if a notice is sent by registered post it could be deemed to have been received five days after posting, or if faxed it may be deemed to have been received on the date of transmission. This removes the necessity of proving receipt.

If the Consumer Protection Act (CPA) applies to an agreement, and the agreement is with a natural person (as opposed to a company for example) then it is presumed to be an unfair contractual term if a supplier deems that a consumer has received a communication, unless that communication is sent via registered post.

As a result if the CPA applies to a transaction, a supplier can certainly send a consumer an important notice via SMS if it really wants to, but it cannot assume that the consumer has received that notice. The supplier would have to prove receipt, which can be awkward.

General Contractual Notices

Note that the above is by no means an exhaustive treatment of the law. For example we have not examined the law relating to short-term insurance. However if a supplier wants to send you notice by SMS and the agreement is not covered by the NCA or the CPA, or any other relevant statute that we have not covered, then the position would be as follows.

The supplier can certainly send you notices in terms of the agreement between you, or even terminate that agreement using SMS if the agreement specifically allows it to. If the agreement deems the recipient to have received an SMS once it is sent, then the supplier would not have to prove receipt of the SMS.

If the agreement does not say when an SMS is deemed to be received, however, the supplier would have to prove receipt. As a result we would recommend that SMS not be used for any important contractual notice.

What if there is no written contract, or the contract does not mention SMS as a medium? There is nothing in law to prevent using SMS, but we would recommend avoiding it for anything important, again because of the problem of proving receipt.

Can invoices be sent by SMS? This is a bad idea for two reasons. The first is once again the problem with proving receipt. The second is that SARS has particular requirements for VAT invoices which an SMS does not meet.

There is no reason why a statement of account sent by SMS would not be acceptable, however.

Dismissal by SMS

As an extra titbit, can your boss fire you by SMS? There is certainly case-law to the effect that a notice of resignation sent by SMS is valid, and it seems that this would also apply to notice of termination sent by an employer. Naturally this assumes that the other requirements set out in our labour law have also been met.”

Stopped at a roadblock - what are your rights?

What to do if a cop flags you down

Know your rights and don’t be afraid to report incidents of intimidation either at your local police station or to:

Corruption Watch: http://www.corruptionwatch.org.za and/or

Justice Project: 087 809-0399 and https://www.jp-sa.org/.

Always have these numbers handy on your cell phone (that I suggest you save under ‘Lawyer’ or ‘Lawyer / Traffic’) namely your lawyer and the Anti-Corruption Hotline 0800 203 172.

These are your rights:

·         Police and traffic officers are within their rights to stop you at a roadblock, and you can’t refuse to be stopped and even searched. However, if you are wary, you may ask to see written authorisation for the roadblock from the National or Provincial Police Commissioner before you submit.  If, for any reason, you are not convinced of the validity of a roadblock, you can request to be taken to the nearest police station.

·         Police officers are required to have their names displayed on their uniforms. If this is not present, you may request the officer for his or her name and for proof of identify (appointment certificate). An officer who cannot or will not provide an appointment certificate on demand is in violation of the Criminal Procedure Act.

·         Often, things get out of hand. If the officer refuses to show you identification, remember that all official police vehicles have a code printed on the side. The letters represent the name of the station and the digits represent the squad car number. If you are being harassed, it is advisable to try to remember this code. Better still, if you think it is appropriate – given the police officer’s demeanour - use your phone to take a picture of the officer, his or her name tag (if displayed), the code and the vehicle’s licence number. Also tell him or her that you are going to call your lawyer and the Anti-Corruption Hotline, for advice. That often diffuses the situation

·         It is unlawful for a traffic officer to tell you that you have no option but to settle your outstanding fines, there and then, under threat of arrest. You cannot be detained unless there is a warrant for your arrest relating to an unpaid fine and the officer can show you a valid copy of the warrant. If he can’t and still wants to arrest you, call your lawyer immediately.

·         You can be detained until you pay an outstanding file for which there is a valid warrant for your arrest. Normally, the fine needs to be paid to a traffic department, and an official receipt should be issued. The only time you may be required to pay on the spot is at a roadblock where there is a formal cash facility.

·         A uniformed police or traffic officer has the right to stop any vehicle at any time. If you are stopped by the police, you are obliged to give your name and address, if required, and any other particulars concerning your identity.

·         In terms of the National Road Traffic Act, a traffic officer does have the authority to demand that you produce your driver’s license, which, by law, must be kept on you or in your car.

·         If a traffic officer asks you to sign for a traffic fine or summons to appear in court, just sign for it don’t argue.

·         If a law enforcement official wants to arrest you, don’t resist arrest, co-operate fully and remain calm. Do not flee or allow your first response to be an aggressive one. Never offer to pay a bribe. Should you resist arrest, the arresting officer may use reasonable force to arrest you.

·         If you are arrested, you have the right to:

o   Be taken directly to a police station (and not driven around, aimlessly);

o   Be informed promptly of the reason for being detained;

o   Be brought before a court within 48 hours of your detention.

o   Choose to, and consult with an attorney of your choice, and should you not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state, at the state’s expense, and to be promptly informed of such rights.

o   Communicate with, and be visited by, your spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner.

·         If he deems your car to be un-roadworthy, a police officer may order that you get out of the vehicle and stop using it, immediately. Alternatively, he may direct that you can use the car for a limited period or to reach a specific destination. He can remove the licence disc from the windscreen.

·         Police officers also have the right to search your car. However, if you feel endangered, you are within your rights to ask the police officer to accompany you to the nearest police station to do the search. This search is only allowed if the officers have a valid and reasonable belief that you may have been involved in the commission of a crime and that a search warrant would be issued by a magistrate or judge.

·         A police officer has the right to ask you to step out of your vehicle and search you, as well. However, a man may not search a woman.

·         If an officer suspects that you have been drinking and are over the legal limit, (0.05g/), note that:

o   You can’t unreasonably refuse to breathe into a breathalyser;

o   If the test shows that you are over the limit, the officer first has to take you to the nearest police station to open a docket reporting the facts of the case;

o   They must then take you to a mobile unit, clinic or hospital for blood to be drawn. You must insist on the use of sterile, clean equipment (opened in front of you) for drawing blood. Bear in mind that blood samples are valid only if they are taken within two hours of your being stopped;

o   Provided he or she can get there in time, you have the right to have you own doctor present when the state doctor or nurse takes your blood.

Your rights and obligations after a collision

1.                If you are involved in a motor accident, in terms of the Road Traffic Ordinances, there are clear duties imposed on you if you are involved in or contribute to an accident on a public road, in which another  person is killed or injured or suffers damages in respect of any property or animal.  Here is what you should do :

*                  Stop your vehicle immediately.  Of course, you do not need to stop at an accident if, for example, you hit a tree and only damage your own car or injure yourself.  There is a legal and, indeed, a moral obligation on you to report a collision to your nearest police station if you hit a lamp standard or say a stationary vehicle and the accident is not witnessed.

*                  Check the nature and extent of any injury to another person.

*                  If the person has been hurt, do all you can to help by administering first aid, (if you know how), summons the police and, if necessary, an ambulance.  If you know nothing about first aid, please do not try to render assistance as this may do more harm than good!

*                  Determine the nature and extent of any damage suffered.

*                  If you are required to do so by any person entitled to such information, provide and obtain the following information :

+                 name, address and telephone number of both drivers name, address and telephone number of the owners of the vehicles

+                 registration numbers of both vehicles

+                 names of the driver’s / owner’s insurance company / insurance broker

+                 full details of the place and time of the collision and the road conditions and visibility at the time

+                 a short note (to jog your memory) of what you recall occurred immediately before and at the time of the collision (including a description of what happened, the speed at which the vehicles were travelling, whether the lights were on or off, whether the other driver was indicating etc.,)

+                 if you are fortunate enough to have a camera or cellphone with you at the time of the collision, take photographs of the scene of the collision from various angles. If not, it is always a good idea to return  to the scene as soon as possible thereafter, to take the necessary photographs

+                 measure distances from the point of the collision to identifiable landmarks such as traffic lights, lamp standards, stop signs and the like and make a rough sketch showing the position of the vehicles immediately before and after the collision

+                 if you are fortunate enough to have witnesses, make sure to take down their full names, addresses and telephone numbers

+                 do not admit liability for the collision, whether to the driver of the other car, a bystander or  to the Police, as this may prejudice any claim that you may have either against the other driver or in respect of your policy of insurance .  On the other hand, if the other driver apologizes for the collision and admits liability, do not hesitate to have him sign a written admission of liability there and then and, if possible, have that statement witnessed.  On the other hand, if he is not prepared to commit his apology to writing, endeavour to persuade him to make his admission in the presence of a responsible official, such as a police officer

+                 if a person or animal has been injured, you are not allowed to move the vehicles, even if they obstruct the traffic until you are given permission to do so by a traffic officer or unless either vehicle completely obstructs the road.  However, if you do move either vehicle, it is important to chalk out its position before doing so.  On the other hand, if no-one has been injured, it would be important to move the vehicles out of the road to prevent a further collision with oncoming traffic

+                 if you are obliged to have your car towed away, agree the charges in advance, otherwise you could be in for a nasty shock when presented with the bill later.  Similarly, if you are a member of the Automobile Association (AA), make sure that only an approved tow-in service is utilised, as the AA will not pay for such service otherwise and you could be substantially out of pocket

+                 if there is a traffic officer at the scene of the collision, you are obliged to provide him with such information as he may require.  If you do not give this information to such official, you must within 24 hours of the accident, report  it at a police station or at an authorised office of a traffic officer (unless you are injured and cannot do so timeously, in which event you must report the accident as soon as is reasonably practicable thereafter).  When you report the accident, give only the bare essentials and do not commit yourself  to a written statement before consulting your insurance company or attorney.

+                 as soon as possible, advise your broker of the accident (even if you do not intend to claim), as the other driver may lay a claim at a later stage

2.                Keeping the above in mind, it would be advisable to carry in your car a pen, paper, a first aid kit, torch and red reflective triangles