Can Your Bank Take Your Money Without Permission?

Legal
Is your bank entitled to clean out your current account’s credit balance – with neither notice to you nor your permission – to settle a separate debt you owe it? Banks have always argued that they are allowed to do exactly that in terms of our common law principle of “set-off” – and that having that ability helps us all in the end by giving them more security when lending us money. As we discuss in more detail below, the National Credit Regulator has however approached the High Court for a determination on whether or not the National Credit Act has changed all that. A recent High Court decision in National Credit Regulator v Standard Bank of South Africa Limited (44415/16) [2019] ZAGPJHC 182 has settled the knotty question of whether your bank…
Read More

Warning: Property Email Scams Surging

Legal
Why yet another warning about cyber-scams in the property industry? It’s because the hard fact is that the criminals are winning this war. In fact we are now reportedly the “second most targeted country in the world with regard to cyber-attacks” (Law Society of South Africa). Hence, no doubt, the Legal Practitioners Indemnity Insurance Fund report of “over 110 cybercrime related claims with a total value of R70 million” in the period July 2016 to August 2018. The scammers are using more and more sophisticated techniques to lull their victims into complacency, and your best protection is your own vigilance – forewarned is definitely forearmed! And remember that property transactions will always remain a firm favourite with online fraudsters for two simple reasons – Property sales usually involve large amounts…
Read More

How to Stop Vital Evidence Being Destroyed

Legal
You suspect that someone you are suing (or about to sue) will destroy or hide vital evidence in their possession. Perhaps by shredding documents or deleting electronic records supporting your case, or perhaps by spiriting away computer hard drives full of incriminating information. You fear that if they get away with it your case will be dead, or at least compromised. Fortunately our law has a strong and quick remedy for you – the “Anton Piller” order, by means of which the High Court can authorise a search for, and a seizure into safekeeping of, the relevant evidence until trial. Surprise raids and fishing expeditions This is a drastic and draconian remedy.  For obvious reasons this is a “surprise raid” on the other party – giving advance notice to the…
Read More

Unlawful Occupiers: Eviction Is Possible, but Neither Quick nor Easy

Legal
“Buy land” said Mark Twain, “they’re not making it anymore.” With the first green shoots of a property market recovery supposedly now showing through perhaps this is indeed the time to take his advice. Just be sure, if the property you have your eye on is occupied by anyone, to seek proper legal advice on the occupiers’ legal position before you put pen to paper. We all know that unlawful property occupiers enjoy substantial constitutional and statutory rights, and a recent High Court case provides a good example of the fact that whilst it is certainly possible to evict unlawful occupiers, it could well be neither quick nor easy. The family that lived rent free for two years A buyer bought an apartment from the previous owner’s liquidators and took transfer of…
Read More

Directors at War and the Liquidation Option – A Tale of Sibling Rivalry

Legal
A company’s directors have both the power and the duty to manage the company’s affairs for its benefit. When two or more directors are in place, it’s perhaps natural for the occasional disagreement to arise between them. Indeed, regular expression of a variety of different viewpoints and ideas can make for a strong, dynamic board and business. Provided, that is, that the directors are in the end result still able to agree on the decisions vital to their company’s continued operations. What happens though when disagreements and disputes escalate and make it impossible to continue running the business? Typically, communications break down to the extent that decision-making is paralysed. First prize will of course always be an amicable settlement – through formal mediation perhaps, or negotiation to buy out a…
Read More

You Signed a Property Sale Agreement, Can You Still Accept a Better Offer?

Legal
Imagine a situation where you put your property on the market and an acceptable, but not-perfect, offer is received. You think of the old saying “a bird in the hand is worth two in the bush” and you decide that you are going to accept the offer – even though it’s not ideal. Perhaps it’s not perfect because it’s subject to a suspensive condition – common ones give the buyer time to sell his/her current house or to obtain a bond. In each scenario your sale will fall through if the buyer is unsuccessful within the stated time, and if that happens you are back to square one after a long and fruitless delay. Bear in mind that that delay could be a protracted one depending on what your sale…
Read More

Equal Pay for Equal Work – Can You Differentiate Without Unfairly Discriminating?

Legal
Our employment laws and labour courts come down heavily on any unfair discrimination in the workplace, but it’s not always easy to decide whether “differentiation” between employees is or is not “unfair discrimination”. Take for instance a recent Labour Court case where a black female employee complained to the CCMA (Commission for Conciliation, Mediation and Arbitration) about the higher salary paid to her white male colleague. They were both employed as “surveillance auditors” in a casino with the same job descriptions, doing the same work on a daily basis, graded at the same level, and reporting to the same surveillance shift manager. Nevertheless her remuneration package was nearly half of her colleague’s – unfair discrimination, she said, on the grounds of race and gender. The CCMA agreed with her and…
Read More

Business Rescue: Are Your Suretyships Enforceable? A R5.5m Lesson for Directors and Creditors

Legal
When a company goes into business rescue, creditors are often in for a beating. So as a creditor, if you had the foresight to cover your position upfront with personal suretyships from individuals with assets (normally the directors of the debtor company), you will no doubt be keen to recoup your losses by calling in those suretyships asap. What happens though if you assent to a business rescue plan whereby the debtor company’s debt to you is extinguished? Does that also extinguish the surety’s personal liability to you? Let’s have a look at the lessons for both creditors and directors in a recent case where two sureties tried to dodge a R5.5m claim in the High Court with that very argument … Imagine a situation where you are owed a…
Read More

Security Estates: Can You Fine Speedsters?

Legal
There are many advantages to buying in a security estate or other community scheme, including quality of life and increased potential for growth in your property’s value. As a buyer just be aware that you will almost certainly be binding yourself to a set of rules and regulations imposed by the Homeowners Association (HOA) or Sectional Title Body Corporate. Check that you are happy with them before you sign anything! Our courts have regularly confirmed the general principle that you are bound by what you agree to, and a recent high-profile Supreme Court of Appeal (SCA) decision of Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others (323/2018) [2019] ZASCA 30 provides an interesting example. HOAs and Bodies Corporate on the other hand will be particularly pleased with the outcome, the High Court…
Read More

Accidentally Paid the Wrong Person? Lessons From a R862k Banking App Error

Legal
In these days of online banking and electronic payment, it’s not uncommon to find out to your horror that you have made a payment to someone in error, either to the wrong recipient or in an incorrect amount. If that happens to you and the recipient refuses to pay you back, what can you do about it? The other side of the coin of course is whether the recipient of an unexplained and unexpected bank account credit can safely go ahead and spend the windfall (the answer in a nutshell is very strong “no” – if there are indeed any free lunches in the world, this is unlikely to be one of them!). A recent High Court judgment of Firstrand Bank Limited v Khopo and Another (AR497/2018) [2019] ZAKZPHC 18 sets out the…
Read More