Kick-off date of Protection of Personal Information (POPI)

At present, only insignificant sections of POPI have come into effect. The main sections, that require strict compliance, under severe penalties for non-compliance, will only commence at a later date, to be proclaimed by the President.

In preparation, and to be apprised of all developments, as they unfold, I recommend that you subscribe to a free newsletter published by my colleague, Mark Heyink, an acknowledged privacy law expert. If you are interested, please subscribe here:

Consent and subscribe to Privacy Online news

Check out his latest article: Privacy - A Human Right and www.privacyonline.co.za, where information regarding Privacy Online and previous news articles can also be viewed.

Hooting taxis driving you mad?

A client asked:

Could you please advise us as to what we must do to enforce the laws against noise pollution with regard to the taxis which stop at Hyde Park Shopping Centre? We are incessantly hounded by the noise of their hooting taxis which is entirely unnecessary and totally unacceptable.

I referred her to Danie Geldenhuys, who heads up Environmental Health (Pollution Control), City of Johannesburg (Region A), Telephone: (011) 025 8020, Cell: 083 467 6627 and E-mail: danieg@joburg.org.za

Danie pointed out that it would be more appropriate to report the matter to the Johannesburg Metropolitan Police Department for investigation in terms of illegal ranking and/or the use of hooters not for emergency proposes but to solicit customers causing a noise nuisance.

Although noise pollution is one of the Pollution Control Environmental Health Section’s functions it normally deals with point source noise pollution issues (a specific person or entity causing the noise) rather than diffuse noise pollution such as sound generated at a taxi rank and if the offence has not been committed in the presence of the Pollution Control Officer, only on strength of affidavits from the complainants.  

Affidavits in turn must address a specific incident committed at a specific time by a specific person or entity.

Kindly refer to this link in this regard:

http://www.bregmans.co.za/information-and-procedure-with-regard-to-noise-nuisance-complaints/

I would suggest that the matter be referred to Johannesburg Metropolitan Police Department for investigation in terms of illegal ranking and/or the use of hooters not for emergency proposes but to solicit customers causing a noise nuisance, prohibited in terms of Regulation 9(i) of the Gauteng Noise Control Regulations and Road Safety Legislation, maybe via the Ward Councillor at the 10+ Ward Meeting.  

How to enforce a CCMA arbitration award

The recent amendments to the LRA have dramatically simplified the recovery process to enforce an unpaid arbitration award, in terms of S143.

In the past, if an award was for performance (reinstatement) or for compensation, an employee had to submit the old LRA 7.18 form to have a warrant authorised. To prevent prescription of the award, he or she had to launch S158 proceedings out of the Labour Court to make the award an order of court.

Now, the amendment introduces a cost effective and quicker method.

Simply use the new LRA 7.18 form to CERTIFY THE AWARD. Once certified, a party can send the original certified award and form directly to the sheriff for execution (monetary) and if there is non-compliance with performance (reinstatement) a party can simply proceed with contempt of court proceedings.

Go here for the form and for more information.

http://www.labour.gov.za/DOL/documents/forms/labour-relations/form-lra-7-18-application-to-certify-council-award-and-writ-of-execution

Is an estate agent liable to a buyer for defects?

What is the legal position if a house has defects, such as rising damp? Can the buyer look to the seller and/or the estate agent?

Although the courts must still rule on this, I believe that there may be an action against the agent.

Option 1 (My opinion – the courts still must test this):

An estate agent is bound to the CPA as:

1.      an estate agent “promotes or supplies goods or services in the ordinary course of business”; and

2.      an estate agent meets the definition of an “intermediary” - a supplier who “in the ordinary course of business and for remuneration or gain, engages in the business of representing another person with respect to the actual or potential supply of any goods or services; accepting possession of any goods or other property from a person for the purpose of offering the property for sale; or offering to a consumer, soliciting offers for or selling to a consumer any goods or property that belongs to a third person, or service to be supplied by a third person”.

Accordingly, an intermediary (the agent) cannot avoid the provisions of the CPA by relying on the mandate agreement it has with the owner of the property (the seller) – an intermediary is NOT accessory to the underlying mandate agreement.

For example, should a defect arise on immovable property, section 54 allows the buyer to receive a reasonable portion of the purchase price as compensation, or section 56 allows the buyer to choose whether the goods should be fixed or replaced. I believe that the buyer has a claim against the estate agent as the supplier and the seller, jointly and severally.

Option 2 (should the CPA not apply):

There is a common law remedy called the actio empti – which gives the buyer a remedy to enforce his/her rights against the seller. This remedy allows him or her to claim damages as the property was delivered without the good qualities guaranteed, or with defects the absence of which was guaranteed by the seller OR the seller was aware of the defects but did not disclose same to the buyer (misrepresentation).

In either option 1 or 2, the voetstoots clause will not affect the buyer’s remedy.

Advice to couples contemplating divorce.

The first question that I ask a couple (or the husband or wife who may see me individually) is whether their marriage has, in fact, broken down irretrievably or whether they shouldn't rather be seeing a marriage counsellor.

If divorce is the only option, I point out that first prize is for the parties to reach agreement so that I can put together a deed of settlement that can be made an order of court. In the settlement I provide for the distribution of assets, maintenance for the wife (if appropriate) and, if there are children, to look after their well-being, and make sure that the dad gets reasonable contact with them.

I emphasise that if the parties are unable to reach agreement they should (and this is now a legal requirement before a matter can be heard by a judge) approach an accredited divorce mediator to facilitate a resolution of the dispute. Depending on the seniority of the mediator, they would be looking at a fee of approximately R 4000. This is significantly cheaper than each approaching a separate lawyer, who will likely dig in their respective heels and posture, each trying to impress his or her client with his or her intractable (and very expensive) way of stringing out the divorce.

In this scenario, the clients get poorer and the lawyers get richer. The parties hate each other even more, and the children are, inevitably, caught in the crossfire.

If sense prevails and the attorneys adopt a holistic approach, the parties can remain on reasonably good terms, the children are less likely to be overly traumatised and the fees will be insignificant.

If at any time a woman feels threatened or intimidated, she must immediately seek independent legal advice, and should never sign any document, before it is first sanctioned by an attorney.