Traffic Fines and Admissions of Guilt – Will They Earn You a Criminal Record?

Legal
We live our lives beset by so many laws and regulations that even the most law-abiding of citizens will sooner or later be accused of some petty offence or other and then faced with the question “Do I fight this in court or do I just pay the fine and get on with it?” Tread carefully here – paying a fine and getting it over and done with is one thing – burdening yourself with a criminal record for life is an entirely different kettle of fish. We discuss the expungement option, when you are at risk of acquiring a criminal record and when you aren’t, and the story of the grass seller who turned to the High Court for help after his admission of guilt fine came back to…
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Trustees at War: The Removal Remedy and Its Limits

Legal
What happens when a trust’s trustees fall out and go to war with each other? If a polite request to the minority trustee to resign bears no fruit, can the majority forcibly remove him or her? And if so, must they have good reason to do so? The first question of course is what the founding trust deed provides for such a situation, but a recent High Court decision lays additional ground rules for trustees that anyone involved in a trust (in any capacity) should know about. The case saw a mother facing off against three professionals (two auditors and an attorney) and the latter’s attempt to replace the mother with another trustee ran into troubled waters. The case When family infighting impacts a family trust, an early casualty is…
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When Should You Sue Rogue Employees? A R33m Example

Legal
Employers, ever mindful of the comprehensive legal rights and protections provided to employees by our labour laws, need to know that on the other side of the coin they too have rights, and that our courts will come to their aid where employee misconduct causes them loss. We discuss your employees’ obligations to you in the context of a recent High Court case involving a trusteed employee who, over a four year period, ran a R33m scheme to enrich himself at his employer’s expense. The case Employees have very strong rights in our law, but employers also have effective remedies when employees “go rogue”. A recent case of Sime Darby Hudson and Knight (Pty) Ltd v Lerena (9293/2013) [2018] ZAWCHC 94; (2018) 39 ILJ 2413 (WCC); [2018] 4 All SA 446 (WCC) , in…
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Property Buyers: Beware Unlawful Occupiers!

Legal
If you plan to buy a house before the property market starts to recover from its present doldrums, be aware of the risks you face if anyone is currently in the property. A recent High Court decision of Pure Capital Property Trading CC v Hanslo and Others (15217/2018) [2018] ZAWCHC 137  illustrates the danger of your being unable to evict unwelcome occupiers who point-blank refuse to leave. We’ll analyse that decision, and the lessons to be learned from it, after summarising the two things that PIE (the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act) requires you to prove before a court will grant you an eviction order. We’ll end off with some practical advice on how to avoid this sort of problem in the first place. The case You…
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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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