Landlord vs Tenant: When Can You Cut Electricity or Change the Locks?

Legal
As a landlord in dispute with your tenant you may well be tempted to avoid the delay and cost of litigation by taking your own eviction or enforcement action. Bad idea. No matter how good your overall case may be (or how good you may think it is), taking the law into your own hands automatically puts you in the wrong. “Spoliation is the wrongful deprivation of another’s right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands … The cause for possession is irrelevant – that is why a thief is protected … The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute” (extracts from a 2012…
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Dementia and Incapacity: What is a Power of Attorney and is it Forever?

Legal
Although the actual prevalence per capita of dementia is reportedly on the decline, aging populations ensure that it is becoming more and more of a problem in society – for older people, their families and caregivers. If someone close to you (normally an aging parent or relative) needs – or may in the future need – assistance with their financial affairs, your first thought will probably be a power of attorney by which the “principal” appoints an “agent” to act for him/her, either for a particular purpose (a ‘special power of attorney’) or generally (a ‘general power of attorney’). You may well have the same thought if you yourself are approaching old age and starting to plan for your future needs. A power of attorney is certainly a quick, cheap…
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Security Complexes and Fibre – You Can Use Telkom Ducting After All

Legal
If you haven’t already done so, you are no doubt thinking of upgrading soon to the “superfast broadband” provided by fibre optic cabling. In any event ADSL is about to disappear with Telkom’s plans to shut down its copper network and migrate ADSL customers to either fibre (where available) or LTE. In a community scheme, your challenge is that your chosen fibre service provider must either use your existing underground ducting or start digging new trenches and putting in new ducting, sleeves and manholes. The expense and disruption of the latter option naturally make it very much second prize. So Telkom no doubt celebrated its 2017 High Court victory over Vodacom and a Home Owners Association (HOA) restoring to Telkom exclusive and undisturbed possession of its underground ducting in a…
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How Courts Sort Fact from Fiction – A Tale of Jags, Deception and Damages

Legal
Sometimes you just have to sue to enforce your rights, and should sweet victory crown your efforts you will celebrate your decision to do so. But litigation isn’t for the faint-hearted, and apart from the cost, delay and stress of fighting your way through our courts, you will want to reduce your risk factors upfront as much as you can. So if your opponent’s version of events is totally at odds with yours you will want some comfort that it is your version that is likely to win the day. How will a judge decide where the truth lies? It’s an important question because even though you know you are telling the truth, the court must base its decision on the evidence put before it. In other words, whether or not Shakespeare’s…
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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…
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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…
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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…
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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…
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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…
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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…
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