Property Owners, Buyers and Agents: Check for the Title Deeds Before 25 February!

Legal
The last thing you want in any property transfer is any more delay and cost than is already built into the process.  Unhappily, that is exactly what is in store if the property’s original title deed is for any reason not to hand. Whether it has been lost or destroyed, you will need your conveyancer to apply for replacement with a certified copy from the Deeds Office. And whereas that is currently a pretty straightforward procedure with minimal delay and cost, that is set to change shortly. We’ll share with you all the details and we’ll give you a plan of action, but beware – your window of opportunity here is a narrow one! Imagine that you sell your house/apartment/office/factory/plot of land and you thereafter instruct your conveyancer to pass transfer to…
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Private Schools and Parents Behaving Badly – the Expulsion Option

Legal
Here’s a recent Supreme Court of Appeal decision of A B and Another v Pridwin Preparatory School and Others (1134/2017) [2018] ZASCA 150 which is of importance and interest to all schools, parents and learners. It deals with a school’s attempt to cancel a parent contract (effectively expelling two young learners) after the parents created a “toxic and intolerable atmosphere” in the school with an eight-month spree of bad behaviour and expletive-rich abuse, mostly at school sporting events. In brief, the Court measured the school’s contract and conduct against its constitutional obligations towards both the learners and all the other affected parties, and against the over-riding principle that the interests of the child are always paramount. Importantly, this case involves not a state-controlled public school but a private school (private schools being recognised in…
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Proving Your Claim in a Liquidation or Sequestration – When You Should, and When You Shouldn’t

Legal
Having to write off bad debt is one thing – having to pay in even more money for the privilege is just adding insult to injury. Yet that is exactly the danger you face if one of your debtors is sequestrated or liquidated (we start off by explaining the different terminology) and you prove your claim without considering the “danger of contribution”. What is that? How does it arise? What if you are a petitioning creditor or hold security for your claim? How can you protect yourself from having to contribute? Read on for the answers… The background You are owed money by a debtor, whose insolvent estate is sequestrated (in the case of an individual or trust) or liquidated (in the case of a company or other corporate). The Master…
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Property Developers Beware: Deemed Accruals Can Seriously Disrupt Your Cash Flow

Legal
A recent Supreme Court of Appeal (SCA) judgment of Milnerton Estates Limited v Commissioner for the South African Revenue Service (1159/2017) [2018] ZASCA 155 has confirmed that when a property developer enters into an agreement with a buyer to transfer the property, even if the developer only actually gets paid in a subsequent tax year, the income is deemed to have accrued to the developer at that date. The developer must therefore include the full proceeds of the sale in its income tax return for the year the agreement was signed. This has the effect of the property developer paying tax before receiving the proceeds of the sale, putting the developer out of pocket until transfer to the purchaser takes place. A R1.9m tax assessment challenged A property developer in Cape Town entered…
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Victims of Corruption Take Heart – “Big Chief” Gets 15 Years Behind Bars

Legal
We are all of us tired of reading about the rampant corruption in our society, and even if you aren’t one of the many businesses or individuals directly affected, everyone is ultimately a victim. Let’s take heart then from two recent Supreme Court of Appeal (SCA) decisions. Firstly, to set the scene – Minimum sentences for corruption Corruption in terms of the Prevention and Combating of Corrupt Activities Act is an offence which, when more than R500,000 is involved, carries a minimum sentence of 15 years’ imprisonment, even for first offenders, “unless there are substantial and compelling reasons justifying a lesser sentence”. The R500k threshold is reduced to R100k where a “common conspiracy” is at play and to only R10k where a law enforcement officer is involved. Confiscation orders are…
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Beware the Building Deadlines When Buying-to-Build

Legal
The case of Walker and Another v Cilantro Residential Estate Homeowners Association (A3067/16) [2016] ZAGPJHC 299 is yet another warning from our courts to take seriously the building deadlines commonly imposed on buyers of plots in residential estates. Failure to comply with them could expose you to heavy fines, recurring penalties and even the risk of losing your plot altogether. A Home Owners Association (HOA) imposed “double levy” penalties totalling R105k on the owners of a plot when they failed to start development of their house before the deadline. Taken to court, the owners challenged the validity of the penalties on a variety of technical and other grounds, but failed on every count. The end result is they must now pay the penalty levies, late payment penalties, and attorney-and-client legal costs for both the…
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Paternity Leave and Minimum Wages – How Will The New Laws Affect You?

Legal
Employers and employees need to know about four new Acts which will usher in important changes to our labour laws. The summary below is a short one of only those changes likely to affect a significant number of people and businesses, so take advice on your specific circumstances. In a nutshell – Parental leave extended Until now, mothers have been entitled to unpaid leave when welcoming a new child into the world, in the form of 4 consecutive months’ “maternity leave”. Plus they can claim maternity benefits from the UIF if they are contributors. New fathers however have been limited to at most 3 days’ family responsibility leave. That will now be extended to – “Parental leave”: “Parents” (i.e. including fathers and same-sex partners) – 10 consecutive days’ parental leave. “Adoption…
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Firearm Owners: What to Do if Your Licence Has Expired

Legal
Possession of an unlicensed firearm is, for good reason, a serious offence carrying heavy penalties, and law abiding citizens will support the police in their efforts to rid our country of illegally-held firearms. It’s a major problem, with media reports suggesting that only 3m out of a total of 5.3m guns are registered and legally owned. That’s 2.3m illegal firearms out there! Caught up in this are the almost half a million South African gun owners who have always held their firearms legally in terms of valid licences but have, for whatever reason, not renewed them on time. Not only private citizens are involved but also security service providers, and it’s a big issue - the Court in this case estimated that up to 60 million rounds of ammunition are…
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Lending to a Friend or Selling Property on Credit – Must You Register as a Credit Provider?

Legal
It seems logical that the very strong consumer protections in the NCA (National Credit Act) are designed for commercial situations in which credit is advanced by “credit provider” businesses to “credit consumers”. But does the NCA also apply to non-commercial, once-off loans? Like a loan to a friend or relative? And what about property sales? Why should you be worried? If you aren’t in the business of providing credit it seems counter-intuitive that you should have to worry about NCA registration when making a single loan or giving credit on a once-off basis. And in fact until now our various High Courts have been split over the question. But that has all changed with a recent Supreme Court of Appeal (SCA) decision in the matter of Du Bruyn NO and…
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When is a Debtor “Insolvent”? A Case of Arrear Maintenance Illustrates

Legal
If you are owed maintenance you have a variety of enforcement options open to you and should ask your lawyer for advice on which is the best for your particular claim and circumstances. A recent High Court judgment of V v V (7833/2016) [2018] ZAGPPHC 505 confirms that one of the weapons in your legal armoury is the sequestration application. And as the defaulter’s desperate attempt to avoid sequestration in this particular case illustrates, even just the threat of sequestration can be a powerful motivator to settle up, regardless of whether your claim is based on maintenance arrears or on any other form of debt. The reason is that an insolvent has to surrender control of his/her estate to a Trustee, who collects and sells all the insolvent’s assets and divides the proceeds…
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