Body corporate cut off electricity

The Body Corporate switched off a client’s electricity, because he fell into arrears with his levies. He asked me what steps he could take to have his electricity switched back on.

I advised: I would suggest that you have a look at the conduct rules of your body corporate. I would be most surprised if they allow the trustees to have acted in the way they have done.

If the conduct rules don't allow the trustees to cut off your electricity, you have two options. The first is to pay the amount that they claim, under protest, and then refer the dispute to the ombudsman:

The Sectional Title Ombudsman

1st Floor Building A, 63 Wierda Road East, Wierda Valley, Sandton
T: +27 (010) 593 0533 │F: +27 (010) 590 6154 │

www.csos.org.za

This is a very recently appointed office and I have no idea what kind of response you will receive or how long the process will take. However, it will not cost you anything but time and effort.

Your second option is to go to your closest Magistrate's Court to see if they assist people in your position to obtain what is called a spoliation order (to restore the electricity on a basis of urgency). Some courts do assist, without charge. If they won't, you will need to approach an attorney for help.

If you can’t afford one, get help from the law clinic at your local university, the Legal Aid Board or check out www.probono.org.za  

Common law marriage in South Africa

A client asked me how long a couple must live together, before they are regarded as being in a common-law marriage.

Common-Law marriage

In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. Their cohabitation does not create any automatic legal rights and duties between them. This is a common misunderstanding.

Cohabitation Agreement

In an age when most marriages fail, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than marry. Same-sex or heterosexual partners who choose not to get married should sign a domestic partnership (also called a life partnership or cohabitation) agreement to protect them should their relationship end. It is cheaper than ending up in court!

A widely-used definition describes “domestic partners” as “two adults who share an emotional, physical and financial relationship like that of a married couple but who either choose not to marry or cannot legally marry. They share a mutual obligation of support for the necessities of life.”

Cohabiting couples do not have the same rights as married couples under the law, so it makes sense to set out at the outset of the relationship what the division would be if the cohabitation breaks down.

The life partnership agreement will provide for such things as:

·         Movable property: Provide for a fair division of household goods on dissolution. A good idea is to list the respective assets of the parties at the start of the relationship and agree whether or nor not these become joint assets. Similarly, keep a register of assets acquired during the relationship and agree whether these too become joint assets.

·         Immovable property:

a.    Who owns the home that you live in? If it is co-owned, deal with the proportion of your respective shares and who gets what, on dissolution.

b.     If it is solely owned, you may consider compensating the non-owner for improvements done to the property at his or her expense.

c.      If the common home is leased property, provide for who stays on when you part company.

·         Financial arrangements:

a.     During the relationship, will you operate a joint bank account? Who will pay the household and living expenses? Who will own cars and other assets? Who will enter into credit agreements? Will you take out life insurance on each other’s lives?

b.      When the relationship ends who pays the debts of the partnership?

·         Children: If you have or intend to have children, agree whether one partner is to support the other party during the relationship if such a partner is unemployed or staying home to care for small children born from the relationship.

Universal Partnership Agreement

If parties live together but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party (who disagrees), must go to court, at some expense, to prove that entitlement. To do so, the party must prove they were in a ‘Universal Partnership’, so that one party is entitled to certain property and assets of the other party, on separation.

Because the existence of a universal partnership is difficult to prove, it makes sense to conclude a life partnership agreement.

If you did not, and need to approach a court to prove the existence of such a partnership you must show that:

·         The aim of the partnership was to make profit.

·         Both parties must have contributed to the enterprise.

·         The partnership must operate to benefit both parties.

·         The contract between the parties must be legitimate.

·         There must be valid consent.

·         There was an intention to create a legally binding partnership agreement.

If a party cannot prove the existence of such a partnership, he or she may walk away with nothing, even if the parties lived together for years.

Getting rid of a criminal record

What happens if you committed a petty offence (like shoplifting) and you want to clear your name?

The act that applies is the Criminal Procedure Act 51 of 1977, that provides that your criminal record can be ‘expunged’ from the records of the Criminal Records Centre after ten years have elapsed from the date of conviction of that offence, if:

·         Your petty theft conviction relates to a sentence of a fine only, under R20,000.

·         You have not committed another offence (that entails a prison sentence without the option of a fine) during the ten-year period. 

This is the process to get your sentence expunged:

·         You obtain a clearance certificate from your police station to show that ten years have elapsed, after the conviction and sentencing;

·         Complete forms (that you can download from the internet) http://www.justice.gov.za/forms/expungement/J744e_formA.pdf;

·         Send the forms to the Director-General for Justice and Constitutional Development, who will issue a Certificate of Expungement, if you meet the required criteria;

·         The Certificate of Expungement is sent to the head of the Criminal Records Centre of the SAPS, ordering the criminal record to be expunged.

I suggest that you get proper legal advice, to make sure you complete the correct form and follow the right procedure.

Must I fence my pool?

A client asked me: “Please can you let me know what is the 'law' regarding a fence around a swimming pool. Is it the landlord’s responsibility or the tenant residing at the property? Is it the law to have a fence around a swimming pool or is a pool net sufficient?

The National Building Regulations require that an owner of any site which contains a swimming pool must ensure that access to such swimming pool is controlled per standards laid down by the South African Bureau of Standards.

In terms of the Measures for Private Swimming Pools By-laws for the City of Johannesburg Metropolitan Municipality, an owner of a swimming pool or swimming bath, must:

• surround it with an enclosure (a wall or compliant steel fence) that must consist wholly or partially of a wall that is so situated, constructed and maintained that a child under the age of seven years is not able to climb over, crawl under, squeeze through such enclosure or any door gate forming part thereof, or otherwise gain access to the swimming pool on its own; and
• ensure that every door or gate forming part thereof fitted with a self-closing and self-latching device which is inaccessible to a child under the age of seven years and which must be maintained in good working order; or
• alternatively, fit the pool with a compliant pool net, and ensure that the pool is completely covered by the pool net always when the pool is not being used;
• not allow any child under the age of seven years to have access to or to use the swimming pool unless such child is always under the direct and personal supervision of a person eighteen years or older.

This applies equally to the owner of a fixed property and the body corporate (in relation to a swimming pool situated on the common property of a sectional title scheme) or the registered owner of a unit in a sectional title scheme who has a right to use a swimming pool in his exclusive section.

The By-laws define “swimming pool” as a privately owned permanent excavation or structure situated at, below or not more than 1m above ground level in the case of an outdoor swimming pool or at, below or not more than 1m above floor level in the case of an indoor swimming pool that is used or is intended to be used for swimming, and can contain at any point, water to a depth of more than 300mm.

In special circumstances, the Council may on written application by an owner of a swimming pool, on a prescribed form, and on such conditions as it may consider expedient, exempt such owner from having to comply with the by-laws if the Council is satisfied with the sufficiency of other measures of protection against accidental injury and drowning which are in place or will be put in place in respect of the swimming pool concerned.

Any person who fails to comply with these by-laws is guilty of an offence and liable on conviction to a fine or in default of payment to imprisonment for a period not exceeding six months.

Penalty for early cancellation of a residential lease

What rights does a landlord have if a tenant cancels the residential lease, before it ends?

The tenant has the right to cancel the lease at any time (on 20 business days’ notice) in terms of the Consumer Protection Act (subject to payment of a reasonable penalty) for premature cancellation. But what is such a reasonable penalty or cancellation fee?

To determine a reasonable cancellation fee, the CPA prescribes a list of factors which must be taken into consideration. These factors include, among others:

·         the rental amount which the tenant stills owes the landlord up to the date of cancellation;

·         the value of the lease transaction up to the date of cancellation;

·         the duration of the lease agreement as initially agreed upon by the parties;

·         losses suffered or benefits accrued by tenant because of the tenant entering into the lease agreement;

·         the length of notice of cancellation provided by the tenant;

·         the reasonable potential of the landlord, acting diligently, to find an alternative tenant between the time of receiving the cancellation notice and the time of the cancellation;

·         and any general practices relating to the relevant industry.

These provisions are not intended to penalise the tenant, but to recover any actual loss suffered by the landlord because of the cancellation. The following costs could apply:

§  Credit check costs for any prospective replacement tenants (even those who are not accepted);

§  Advertising costs (only the actual amounts on the invoices);

§  Rental – the exact number of days that the unit remains vacant after the tenant vacates.