Contracts under the Consumer Protection Act

A client asked: “I signed a tuition agreement that requires me to give a full term’s notice. Am I bound by this?”

I answered:

As you are a “protected person” - defined in the Consumer Protection Act (CPA) as any individual or any legal entity with a turnover and an asset value of under R2 million - the notice period is not binding, and you need only give 20 business’ days’ notice (section 14 and section 51). However, this is subject to payment of a reasonable penalty  for premature cancellation.

The CPA sets out the following rights and obligations concerning contracts between suppliers and consumers:   

·         The contract must be in plain language (section 22);

·         A consumer may rescind a transaction that came about because of direct marketing, without reason or penalty. The consumer merely needs to give the supplier written notification of his or her intention to rescind the agreement, and this notification must be given within 5 business days of the transaction being concluded or, within 5 business days of the goods being delivered to the consumer. (Section 16);

·         The consumer has the right to an itemised breakdown of his or her financial obligations under the contract and to receive a copy of the contract free of charge (section 5);

·         Suppliers must not offer to supply, supply or enter into an agreement to supply goods or services at an unfair, unjust or unreasonable price or on terms that are unfair, unjust or unreasonable. Suppliers are also prohibited from marketing any goods or services in an unfair or unjust manner (section 48);

·         Consumers must be alerted to any contract term that limits the consumer’s rights. This notice or provision must be in a conspicuous manner and form that is likely to attract the attention of an ordinarily alert consumer (typically highlighted at the top of the contract or initialled by the consumer (section 49); and

·         A contract may not contain clauses that are misleading or deceptive, subjects the consumer to fraudulent conduct, directly or indirectly waives or deprives a consumer of a right entrenched in the CPA, avoids a supplier’s duty in terms of the CPA, sets aside or overrides the effect of any provision contained in the CPA,  authorizes the supplier to do anything that is unlawful in terms of the CPA or limits or exempts a supplier of goods or services from liability for any loss attributable to the supplier’s gross negligence section 51).

Ubuntu and the law

Wikipedia defines Ubuntu as a Nguni Bantu term meaning "humanity". It is often translated as "I am because we are," and "humanity towards others", but is often used in a more philosophical sense to mean "the belief in a universal bond of sharing that connects all humanity".

According to a colleague, Adv Viljoen Meijers, who researched the impact of ubuntu on the modern law, the term first appears in the Child Justice Act, whose objects are to ‘promote the spirit of ubuntu’ by fostering children’s sense of dignity and worth and reinforcing their respect for human rights and the fundamental freedom of others by holding children accountable for their actions and safeguarding the interests of victims and the community.

The Constitutional Court found that the primary application of ubuntu was in the field of political reconciliation. The court stated: ‘ubuntu is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person’s status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of a community such person happens to be a part of’. By the same token, ‘the person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of the community’. Ubuntu ‘carries in it the ideas of humaneness, social justice and fairness…’; ‘an instinctive capacity for and enjoyment of love towards our fellow men and women.’

In a Supreme Court of Appeal matter, dealing with a breach of contract, it was argued that the court should import a term into a lease based on ubuntu. The court refused to do so, reiterating the principle of sanctity of contract.

However, the same court, hearing a claim based on delict (in this case, child support), stated that one must have regard to constitutional values, one of such being ubuntu.

The Equality Court (in Afriforum v Malema) found that freedom of expression, particularly was is classified as hate-speech, is limited not only by the law but also by the spirit of ubuntu.

Adv Meijers concludes that ‘ubuntu will clearly shape the contractual and delictual landscape in the future.’

Boundary Walls – problems with your neighbour?

Disputes surrounding boundary walls in residential and commercial areas are one of the most controversial topics facing homeowners. These relate to the location of the boundary between the two properties, or when trees or plants encroach on or overhang the other property, or when the wall (or work done on it) causes a nuisance or a threat to the neighbouring land, or when the wall diverts the natural flow of water or obstructs the neighbour’s view or access to light.

A boundary wall is generally defined as “any wall erected on, above or over the physical boundary between two properties, so that they stand on or occupy space at least partially on both properties”.

If you decide to build a wall or erect a fence on the boundary, you may do so provided it is on your property. And this includes the foundations which, of course, will be wider and longer than the wall itself. The structure will then belong to you. 

Usually, however, neighbours agree to share the costs of boundary walls, in which case ownership is also shared. In the absence of proof that a boundary wall is wholly on one or other property, ownership is usually presumed to be shared. Some local authorities state that each side is then owned by the property owner on each side; others say that the wall is owned jointly. If ownership is shared, either way, neither owner may do anything to the wall – i.e. they may not raise it, lower it or break it down – without the other neighbour’s permission. 

If the structure is damaged in any way, both must share the cost of repair. Both neighbours are obliged to contribute to reasonable and necessary costs of repairs or maintenance of the wall. If the wall is damaged by natural forces such as wind or fire, either neighbour can repair or restore it, and the other party is obliged to make a reasonable contribution to the cost of repairs or replacement of damaged or destroyed party walls, if it benefits her as well. She won’t have to contribute if her neighbour decides to replace the existing wall with a better or more expensive one. Obviously, one neighbour cannot do anything that may affect or compromise the overall stability of the wall.

Municipalities require that:

• Solid boundary walls may not be any higher than 1.8 m on street boundaries, and no higher than 2,1 m on lateral boundaries.

• Palisade-type fences may not be higher than 2.1 m on either street or lateral boundaries.

• Fences may not be higher than 2,1 m on street boundaries.

Are barking dogs driving you mad?

The sensible thing to do is to chat to your neighbour, over a cup of tea, and explain that the dog is preventing your baby from sleeping (or whatever) and ask him or her to do the neighbourly thing. One solution (if the neighbour works all day and the dog is bored or afraid) is to fit a cold air spray bark collar. All vets sell these devices and they are not at all cruel. Perhaps the dog needs to see an animal behaviourist? He or she will see why the dog barks excessively (lack of exercise, lack of stimulation, separation anxiety, protecting territory, etc.) and recommend a solution.

If that does not help or if the neighbour is indifferent or defensive (and refuses to make the nuisance go away) you should report the matter to the authorities (the local authority and, perhaps the SPCA) and, that failing, contact your lawyer, who will have to send a threatening letter or even go to court for an interdict.

Disciplinary procedures vary from district to district. If you go the reporting or legal route, you will start a feud, so, wherever possible, try and settle matters amicably.

In Johannesburg, Section 5(a) of the City of Johannesburg Metropolitan Municipality’s by-laws relating to dogs and cats (Prohibitions relating to the keeping of dogs) provides that no person may keep a dog which barks, whimpers or howls to such an extent that it, or has another habit which, causes a disturbance or nuisance to inhabitants of the neighbourhood.

Call 011 375 5911 and log a call of “disturbance of the peace”.  The authorities will satisfy themselves that the barking is indeed intolerable and issue a warning notice to the dog’s owner to cease and desist (requiring the discontinuance of such offence). Failure to comply could result in the dog being impounded.

The SA Noise Control Regulations provide that no person shall:

·         make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof;

·         operate or play, or allow to be operated or played, a radio, television set, drums, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound so as to cause a noise nuisance; 

·         offer any article for sale by shouting, ringing a bell or making other sounds or by allowing shouting, the ringing of a bell or the making of other sounds in a manner which may cause a noise nuisance; 

·         allow an animal owned or controlled by him or her to cause a noise nuisance.

If a noise emanating from a building, premises, etc., is a disturbing noise or noise nuisance, the authorities may instruct in writing the person causing such noise to discontinue or cause to be discontinued such noise within a period stipulated in the instruction. Failing response (in the case of e.g. power tools, musical instruments or animal) the instrument, equipment or animal can be confiscated, or impounded.

Any person who contravenes or fails to comply with a written notice shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment. In the case of confiscated items, the court may declare any vehicle, power tool, musical instrument or equipment, or animal forfeit to the local authority.

Can an unmarried mom claim maintenance from the father’s pension?

A client asked:

I would like some advice please. My partner and I were living together for 5 to 6 years then broke up in February 2018 because he was cheating on me. We have 2 children together which he paid R1000 Maintenance for a month. Last week he let me know that he lost his job and I would like to know how can I get some of his Provident fund money to go to my kids? Even if it’s invested into an Educational Fund that will be fine.

The one problem is we were not married...what are my rights as a mother?

Answer:

Unfortunately, as you were never married, there has not been a dissolution of the marriage so there is no automatic claim on his pension fund. However, you can obtain a maintenance order for the children. The court will consider the needs of the child and the father’s ability to contribute. Once you have this order you can attach his provident fund benefits to cover area and (possibly) future maintenance.

The Maintenance Act and the Pension Funds Act give a retirement fund the right to withhold or deduct amounts from pension benefits to pay maintenance to a child, and this grants you a mechanism to apply to court to enforce a maintenance order. 

The fund cannot make any deductions for outstanding maintenance payments until the husband’s benefit in the fund accrues. As he has lost his job, the fund will pay out a retirement or withdrawal benefit. Once the retirement benefit has been paid to the member, the benefit is no longer in the hands of the pension fund and you cannot attach the benefit. Therefore, if you know that a defaulting parent is, for example, going to leave his fund, you should ask the fund to withhold his or her benefit while you finalise a claim for arrear maintenance.

In Mngadi v Beacon Sweets and Chocolates Provident Fund, the father was a member of the Beacon Sweets and Chocolates Provident Fund. He had resigned to avoid paying maintenance and planned to withdraw his benefit, the court heard. The court ruled the fund could be interdicted from paying the benefit to the member for as long as the member was liable for maintenance, and it ordered the fund to deduct from the benefit the maintenance due each month.

The court said that once the maintenance was no longer due – for example, when the children reached the age of majority – the member could be paid the remaining benefit.