What Role Do Homeowners’ Associations Play in Shared Developments?
Homeowners’ Associations (HOAs) are a critical component of shared developments in South Africa, managing everything from noise levels to pet policies. While they offer many benefits, the legal framework surrounding HOAs can be complex, involving legislation such as the Sectional Titles Schemes Management Act of 2011. In addition to managing disputes and enforcing rules, HOAs also play a key role in maintaining the aesthetic quality and value of properties within a shared development. For instance, they may have rules regarding landscaping, painting, or window coverings, all of which contribute to a well-kept and visually pleasing neighbourhood. Moreover, HOAs can provide a range of communal services, such as security patrols, cleaning services, and even recreational facilities. These services not only enhance residents’ quality of life but also contribute to the overall desirability and value of the development. By preserving property values, HOAs can also create a sense of pride and community among residents. However, HOAS need to strike a balance between enforcing rules and respecting residents’ rights. Overly strict or intrusive rules can create tension and frustration among residents, potentially leading to disputes and legal challenges. To avoid such conflicts, HOAs should be transparent and fair in their decision-making processes. Residents should be encouraged to participate in HOA meetings and to voice their concerns or suggestions, creating a collaborative and mutually beneficial environment. In summary, HOAs serve as guardians of communal living in South Africa, playing a vital role in maintaining property values, preserving the aesthetic quality of developments, and fostering a sense of community among residents. However, their authority must be wielded with care, balancing the need for rules and regulations with the rights and interests of residents. To ensure a positive living experience within a shared development, residents and HOAs should work together, communicating openly and utilising available dispute resolution mechanisms when conflicts arise. With respect, understanding, and cooperation, shared living in South Africa can be both harmonious and rewarding. Negotiating Disputes Within HOAs Disputes within HOAs are common but can often be resolved through proper communication and the use of dispute-resolution mechanisms. Under the Prescribed Management Rules, HOAs must establish a Dispute Resolution Committee (DRC) to handle disagreements between residents and the HOA, as well as between residents themselves. If conflicts escalate, residents can also appeal to the Community Schemes Ombud Service (CSOS), a statutory body that provides dispute resolution services for sectional title schemes. Ensuring Harmony Within Shared Developments Harmony is essential for successful shared developments, and HOAs play a vital role in maintaining this balance. By understanding the legal framework and using the available dispute resolution mechanisms, residents and HOAs can work together to resolve conflicts and protect individual rights. For property owners in South Africa, it is important to familiarise themselves with the legal framework and dispute resolution processes before entering into shared ownership arrangements. This can prevent unnecessary conflicts and ensure a positive living experience. Homeowners’ Associations are a crucial element of shared developments in South Africa, balancing individual rights with community harmony. By understanding the legal framework and utilising dispute resolution mechanisms, residents and HOAs can prevent conflicts and foster a positive living environment. If you are a property owner considering shared ownership, take the time to research the legal framework, the Prescribed Management Rules, and available dispute resolution options. Doing so can help ensure that your experience is both rewarding and legally sound. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Mediation v Arbitration: What Is the Difference? PART 1
A common trend in commercial contracts is the inclusion of a mediation and/or arbitration clause. As a general point of departure, these clauses require the parties to the contract to refer any dispute arising from the contract to mediation as a first step. Should the mediation process be unsuccessful, these clauses then require that the parties have the dispute arbitrated. These clauses are in a certain sense a double-edged sword. On the one hand, they promote contractual parties amicably resolving disputes. The positives of this are the avoidance of litigation and legal costs. On the other hand, if mediation proves to be unsuccessful arbitration can be a costly exercise and leaves dissatisfied parties with few avenues to reserve or challenge the decision. This article will explore what the differences are between mediation and arbitration generally. Mediation Over time, there has been a shift towards consensus-based dispute resolution processes and as a result, the use of mediation is more prevalent. This is especially true for commercial matters. By using mediation as a way to resolve disputes the parties thereto are able to be fully involved in and have more control over the process itself and the outcome. Currently, in South Africa, there is no legislation governing mediation as a method to resolve disputes. As such, there is also no definition of ‘mediation’ readily available in our law. Despite this, there are working definitions of mediation that have been suggested by authors and which are widely accepted. For example, the National Alternative Dispute Resolution Advisory Council in Australia defines mediation as follows: “Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop opinions, consider alternatives, and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the disputes or the outcome of its resolution but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement.” From this working definition, some of the main features of mediation as a dispute resolution process can be identified. These include: 1. The process is a voluntary, non-binding, non-prescriptive dispute resolution process. Parties involved in mediation do so completely voluntarily. This method of resolving disputes is ineffective if one or more of the parties involved are not actively involved in seeking an agreement. This means that should one or more party decide to not be involved in the process, mediation will fail. 2. The mediator is an independent individual who facilitates the process. The mediator is generally a specialist in the procedures of mediation. Their role is not to be specialists in the content of the dispute at hand. Their expertise in how the mediation process works allows them to actively assist the parties to a dispute to reach an agreement themselves. A mediator can also be described as a facilitator since their main task is to help the parties through the process so that the parties themselves resolve the dispute. Essentially, the mediator assists the parties in their negotiations. 3. The process is confidential. This is often seen as one of the greatest advantages of mediating a dispute. Mediation is completely confidential. Confidentiality in this context is two-fold. Firstly, the mediator is bound to keep the fact that mediation is taking place confidential. This means that the fact that parties are resolving a dispute with mediation cannot be shared. Secondly, the mediator is bound to keep the happenings of the mediation confidential. What was discussed between parties, offers that were made, and all other communications regarding the dispute must remain confidential. These key features were also discussed by the High Court in the case of Kalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of South Africa Ltd and Others. From the above, it is clear why mediation has become a popular way to resolve disputes. A discussion relating to Arbitration will follow in Part II. Reference list: T Hedeen, Coercion & Self-Determination in Court-connected Mediation: All mediations are voluntary, but some are more voluntary than others (1997). Kgalagadi Manganese v Industrial Development Corporate of South Africa (2021). J brand, F Steadman & C Todd Commercial Mediation: A User’s Guide (2016). While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
All Our Trustees Have Resigned. What Now?
What happens if all the trustees of a sectional title scheme resign? Who is then in control of the management, and who is entitled to continue exercising the function and powers of the body corporate, which is entrusted to the trustees by virtue of the Sectional Title Schemes Management Act 8 of 2011 (STSMA)? The answer lies in the question, namely the body corporate. Prof CG Van der Merwe describes the body corporate as consisting of the aggregate of sectional owners, and is the central administrative body provided by the legislature for the management of the scheme. Upon the date upon which any other person other than the developer becomes an owner, there is deemed to be established for that scheme, a body corporate. The body corporate is subject to the provisions of the STSMA, responsible for the enforcement of the rules and for the control administration and management of the common property for the benefit of all the owners. A body corporate continues to exist until such time as its affairs are wound up and it is dissolved pursuant to an order to that effect by the High Court. No sectional owner can revoke his membership in the body corporate, and they remain a member until they cease to be an owner of a unit in the scheme. It is therefore obvious that the resignation of the trustees will not bring an end to the body corporate. There are a few options available to the owners of units to ensure the continued functioning of the body corporate, now that the trustees have resigned from office, namely: Call a special general meeting in order to appoint replacement trustees. In order to convene a meeting, the owners entitled to at least 25% of the total of the quota of all sections, can convene the meeting by giving 14 days’ notice to all the owners. The notice must include the motion for discussion, which must be included in the agenda for the meeting. Should all the members waive their right to the meeting and consent to the resolution, then the rules provide that the meeting does not have to be held and that the resolution will be so passed. If not, the meeting must be held and the resolution must be voted upon. The appointments will not require a special or unanimous resolution, a simple majority will suffice. The replacement trustees will serve until the next annual general meeting. The replacement trustees then continue as the trustees and must perform the duties and functions entrusted to them; or The body corporate can, by way of a special resolution, appoint an executive managing agent to perform the functions and exercise the powers that would otherwise have been performed and exercised by the trustees. Alternatively, the owners entitled to 25% of the total quota of all the sections can apply to the Community Schemes Ombud Service for the appointment of an executive managing agent. The Act provides that: the executive managing agent is subject to all the duties and obligations of a trustee under the Act and the rules of the scheme; is obliged to manage the scheme with the required professional level of skill and care; is liable for any loss suffered by the body corporate as a result of not applying such skill and care; has a fiduciary obligation to every member of the body corporate; must arrange for an inspection of the common property at least every six months and must report at least every four months to every member of the body corporate on the administration of the scheme. The Act furthermore provides the extent of the details to be included in the reports as referred to above. The list is extensive and includes amongst other things: proposed repairs and maintenance of the common property and assets of the body corporate; any matter relevant to the condition of the common property; the balance of the administrative and reserve funds of the body corporate and a reconciliation statement of the funds; for the period of appointment the expenses of the body corporate, including repair maintenance and replacement costs and a brief description of the date and nature of all decisions made by the executive managing agent. The only issue detracting from the appointment of an executive managing agent will be the cost involved. The executive managing agent will charge a fee which will usually be higher than that of managing agents due to the extent of the work as a result of any ineffectiveness or maladministration of the existing trustees; or Finally and possibly the most intrusive and costly, in that it involves a court application, is the appointment of an administrator. If there is evidence of serious financial or administrative mismanagement of the body corporate and if there is a reasonable possibility that if placed under administration it will be able to meet its obligations and be managed in accordance with the Act, the Magistrates Court will appoint an administrator for a fixed period. An application can be made by the body corporate, a local municipality, a judgment creditor, any owner or a person having a registered real right in or over a unit for the appointment of a suitably qualified and independent person to serve as an administrator. The administrator has, to the exclusion of the body corporate, such powers and duties as the Magistrates Court direct and must exercise these powers to address the body corporate’s management problems as soon as is reasonably possible. They must convene and preside at meetings and lodge with the Ombud copies of notices and minutes of meetings and written reports on the administration process every three months or at such intervals as the court may determine. The court can on application by the administrator or those parties referred to hereinbefore, remove, replace, extend the term or amend the terms of appointment of the administrator and make any order for payment of costs. Prof CG van der Merwe states that
Claiming Ownership Through Acquisitive Prescription
One way to acquire property in South Africa is through acquisitive prescription. This method does not rely on the transfer of rights from a predecessor in title; instead, it acknowledges specific factual criteria that, when met, grant legal rights and title to ownership. This article will outline the requirements necessary for successfully claiming ownership through acquisitive prescription, with a focus on the Prescription Act 18 of 1943 and the Prescription Act 68 of 1969. Acquisitive prescription is regulated by the Prescription Act 18 of 1943 (“1943 Act”) as well as the Prescription Act 68 of 1969 (“1969 Act”). According to section 2(1) of the 1943 Act, acquisitive prescription is the acquisition of ownership through the possession of another person’s movable or immovable property, or the use of servitude in respect of immovable property, continuously for 30 years nec vi, nec clam, nec precario (without force, without secrecy, without permission). Section 1 of the Prescription Act 1969 (Act 1969) stipulates that “subject to the provisions of chapter I and chapter IV, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for an uninterrupted period of thirty years or for a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years.” Requirements for Acquisitive Prescription The following requirements must be satisfied in order for one to be successful in their claim for acquisitive prescription: Possession (or use, in the case of acquiring limited real rights). Openness (nec clam). Possession as if the owner (This means that the possessor must act as though they are the rightful owner of the property. This involves having the intent to claim ownership (animus) as part of civil possession, along with elements from previous requirements, such as not holding the property by permission (nec precario) and demonstrating an adverse use of the property. Continuous possession for 30 years. 1. POSSESSION The type of possession required for prescription is not defined in the 1943 Act. The 1969 Act is slightly clearer in this regard, stipulating that the possessor needs to possess “openly and as if he were the owner”. The individual claiming ownership of the property must demonstrate both physical control and a corresponding mental attitude towards the property. This means that possession should not only involve tangible control but also reflect the mindset of an owner or the intention to acquire ownership. This type of possession is referred to as civil possession, which encompasses both objective and subjective elements: physical possession combined with animus domini, or the intention to acquire the property. 2. OPENNESS (NEC CLAM) This requirement requires the property to be held peacefully and openly. Possession must be held in an open manner and patent to the general public and also in a manner that the owner would have been able to see and take notice of the possession and the various acts of the user associated therewith. 3. POSSESSION AS IF THE OWNER This requirement stipulates that the property must not be held under revocable permission or any contractual or legal relationship, such as a lease or usufruct. There should be no grant of permission implied. If a tacit agreement can be demonstrated, it may allow one to contest the claim of acquisitive prescription. The Prescription Act mandates that the potential acquirer must act as if they are entitled to possess and use the property rights. This requirement aligns with the dominus element of civil possession, incorporating aspects of both nec precario and adverse use. 4. CONTINUOUS POSSESSION FOR THIRTY YEARS This element requires the property to have been held for an undisturbed period of thirty years. In Welgemoed v Coetzer and others 1946 it was held that the required continuity of occupation need not be absolute continuity, for it is enough if the right is exercised from time to time as occasion requires and with reasonable continuity. In practice, the claimant needs to do no more than demonstrate that possession, including that of predecessors in title insofar as this is relevant, endured for the thirty-year period to a sufficient degree to justify the conclusion that the exercise of rights of ownership was continuous. In light of the foregoing, it is clear that acquisitive prescription is a valid principle in our law that allows a possessor, who has satisfied all the requirements as set out in the acts and in terms of common law, to obtain the title of the property by virtue of their possession and use of the property for a specific period of time. Reference list: Prescription Act 18 of 1943 Prescription Act 68 of 1969 Mark Evan Investments CC v Groenveld and Another (11747/2017) [2023] ZAKZDHC 74 Welgemoed v Coetzer and others 1946 TPD 701 at 720 Acquisitive Prescription in View of the Property Clause, Ernst Jacobus Marais 2011 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes
What Can You Do When Your School Is Being Neglected by the Government?
The current statistics show that there are currently: 3 544 schools without electricity; 2402 schools without water supply; 11 450 schools still using pit latrine toilets; 22 938 schools without stocked libraries; 21 021 schools without laboratory facilities; 2 703 schools without fencing; and 19 037 schools without computer centres. This article examines the legal remedies available to address situations where a school is deprived of essential resources due to government neglect, hindering its ability to function effectively. The Right to Basic Education in South Africa As a point of departure, section 29 (1) of the Constitution provides that everyone has the right to basic education, adult basic education and further education. The South African Schools Act 84 of 1996 (“SASA”) sets out the legislative obligations the government ought to comply with, in order to implement S29 (1) of the Constitution. S5A of SASA provides that schools within South Africa need to have classrooms, electricity, water, sanitation, internet connection, libraries, security fences and sports facilities. In addition, the Minimum Uniform Norms and Standards for Public School Infrastructure, 2013 (“the Regulations”), apply to all public schools. These regulations mandate that schools must be maintained in a manner that fosters a conducive learning environment. This means the government has a responsibility to support schools in a manner that will create an environment in which everyone can enjoy the right to basic education. Case Law In the case of Section 27 & others v Minister of Basic Education & another, the Department of Basic Education (“DBE”) adopted a new national education curriculum. As a result, new textbooks were prescribed and these new textbooks needed to be available for use in time for the 2012 academic year for schools in Limpopo. It was therefore the responsibility of the government to supply schools in Limpopo with the new textbooks. A significant number of prescribed textbooks were not ordered or delivered to schools in Limpopo province in a timely manner before the start of the academic year. This government failure was never rectified. Consequently, Section 27, along with two other applicants, approached the High Court seeking an order against the Minister of Basic Education of the Republic of South Africa and the Executive Council of the Limpopo Department of Education. They sought a declaration that the failure to deliver textbooks violated the South African Schools Act No. 84 of 1996, Section 195 of the Constitution of the Republic of South Africa, and the rights to basic education, equality, and dignity as enshrined in the Constitution. The applicants also asked for a court directive to the respondents to provide textbooks for all relevant school grade learners on an urgent basis and develop and implement a ‘catch-up plan’ for at least the affected highest grade learners. The High Court granted both remedies. The Department of Basic Education of Limpopo was directed to deliver all outstanding books within the set deadline of approximately one month from the date of the order. In addition, the court directed the respondents to develop and implement a detailed ‘catch up/remedial’ plan for the learners in the highest affected grade, which was ordered to be filed with the High Court. If your school is in a situation where it does not have access to water, electricity, quality safe infrastructure or access to learning materials, it could constitute a violation of the right to basic education. In such cases, you could apply to the court for an order compelling the government to comply with its obligations. Should you require legal assistance of such a nature, feel free to contact us or book a consultation. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The Costs of Deceased Estates Explained
An important function of an executor, the person who is appointed by the Master of the High Court to administer a deceased estate, is to account for the liabilities in the estate of the deceased. Keep in mind that only once the liabilities in the estate have been discharged can the heirs receive their inheritances. In this article, the various costs and expenses involved in administering a deceased estate are explained. Income tax One of the executor’s key functions is to ensure that SARS is paid what it is owed in respect of taxes. The executor will have to submit at least two income tax returns – the pre-date of death return is in respect of the income of the deceased up to the date of death, whereas the post-date of death return is in respect of income which accrued during the administration process up until submission of the liquidation and distribution account. Estate duty All property belonging to a person at the date of death, together with all property deemed to belong to that person, forms part of the estate for purposes of calculating estate duty. Estate duty is a tax payable on the dutiable estate of the deceased, with the first R3.5 million of the value of the estate not being dutiable. Estate duty is charged at a rate of 20% of the first R30 million, and 25% on anything over R30 million. Accrual claim If a person is married out of community of property with the accrual system, the accrual is calculated upon the death of the first-dying spouse. If the value of the deceased spouse’s estate is greater than that of the surviving spouse, the surviving spouse will have a preferent claim against the deceased’s estate for their share of the accrual. Maintenance claims If the deceased has maintenance obligations in terms of a divorce order, these obligations do not fall away on death and the executor will need to ensure that they are honoured, which is normally done in the form of a lump sum payment. Outstanding debt The executor must also settle all other debts of the deceased, such as outstanding balances on home loans and instalment sale agreements, and amounts owing to creditors e.g. medical bills and store accounts. Administration costs Funeral and burial costs: Funeral and burial costs are borne by the deceased estate although, normally, the deceased’s family covers the costs of the funeral, and then claims the costs back from the estate. Advertising costs: During the administration process two sets of notices must be placed in a local newspaper and the Government Gazette. Master’s fees: Estates with a value of more than R250,000 are levied Master’s fees at a sliding scale up to a maximum of R7,000. Bank charges: Service fees are debited to the bank account opened in the name of the estate. Provision of security: If the nominated executor is not exempt from lodging security, the premium payable on the bond of security is a charge against the estate. Maintenance costs: Costs incurred in respect of maintaining an asset in the estate, such as garden services and repairs, must be covered by the estate. Professional fees: The executor may need to use professionals to assist with the winding up of an estate, and these costs will be paid by the estate e.g. estate agent’s commission if immovable property is sold out of the deceased estate, or the fee charged by a tax practitioner completing income tax returns. Valuation costs: The account rendered by an appraiser for a valuation of assets for estate and estate duty purposes is a cost payable by the estate. Bond cancellation costs: The executor must cancel all bonds registered over immovable property once the outstanding balances have been paid, and the estate is liable for the bond cancellation costs. Transfer costs: If immovable property in an estate is transferred to an heir, the estate must pay the transfer costs, being the attorney’s conveyancing fees, in accordance with a sliding scale determined from time to time. Executor’s fees: The executor is entitled to remuneration for the work involved in administering an estate. The prescribed tariff is 3.5% (plus VAT) of the gross value of the assets in the estate. In addition, an executor can charge 6% on all income collected on behalf of the deceased estate from the date of death until the winding up of the estate. The costs, as set out above, will vary from estate to estate. It often happens that an estate is solvent, meaning that the total value of the assets exceeds the total value of the liabilities, but there is insufficient cash in the estate to settle the debts and expenses. If there is a cash shortfall in an estate, the executor will approach the heirs to the residue of the estate to establish if they are able to pay the cash shortfall into the estate to avoid a sale of assets. If the heirs are unable or unwilling to do so, the executor may have no choice but to sell assets. Reference List: https://timesnetwork.co.za https://eb.momentum.co.za https://www.fisa.net.za While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Can a Creditor Sell the Home of a Debtor to Recover Outstanding Debt?
Most South Africans today, are overburdened and overwhelmed with debt and are struggling to repay creditors. According to recent statistics, a third of people in South Africa with credit are struggling to repay their debts. This means, there are approximately 10 million people who are three months or more behind on debt repayments. This article will explore under what circumstances can a creditor (someone to who you owe money) have your residential home or immovable property sold in execution to obtain payment of an outstanding debt after judgment has been granted in their favour. The case of Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (Jaftha) concerned a person who was overburdened with debt and was unable to repay her creditors. The facts of the case were as follows: Ms Jaftha was unemployed, ill, and poor. She only had standard two education. In 1997, Ms Jaftha was granted a state housing subsidy with which she bought a home where she lived with her two children. In 1998, Ms Jaftha borrowed R250 from Ms Skaarnek which was to be repaid in instalments. Ms Jaftha was unable to repay the amount owed and Ms Skaarnek approached a law firm to enforce payment. In March 2001, she was informed by Markotter Attorneys that she would need to pay R5,500, including accrued interest, otherwise, her residential home would be sold. Ms Jaftha was unable to pay this amount and was forced to vacate her home following its sale in execution for R5,000 on 17 August 2001. The Constitutional Court in the Jaftha case, clearly outlined the legal process which ought to be followed before a creditor can have the residential home of a debtor sold in execution to recover payment of an outstanding debt. In principle, the court held that a creditor after obtaining judgement, must first resort to attaching the movable property of a debtor to enforce payment of an outstanding debt. It is only once there is insufficient movable property to satisfy a debt, then a creditor may proceed to apply to the court to request the immovable property or residential home of a debtor to be sold to obtain payment of the debt. Therefore, a creditor cannot, as a first resort, have a debtor’s residential home sold to obtain payment when the debtor has not paid their debts. The court introduced in this case the mechanism of “judicial oversight”, which means, that before the residential home of a debtor may be sold to satisfy a debt, the court must grant permission to do so. The following factors will be taken into consideration by the court before permitting such an order: the circumstances in which the debt was incurred; any attempts made by the debtor to pay off the debt; the financial situation of the parties; the amount of the debt; whether the debtor is employed or has a source of income to pay off the debt and any other factor relevant to the particular facts of the case before the court. However, recent case law developments have indicated that it may be possible for creditors, in specific circumstances, to have the immovable property of a debtor sold to obtain payment of a debt as a first resort. Effectively, this opens the possibility of creditors being able to bypass the requirement of attaching the movable property of a debtor first. The Supreme Court of Appeal in the Mapea v M.A Selota Attorneys and Another case has recently endorsed the decision of Silva v Transcope Transport Consultants and Another in which the court held that where a debtor acts in a tricky manner and deliberately frustrates the creditors’ efforts to obtain payment. The court can exercise its discretion to allow execution against the debtor’s immovable property without resorting to the attachment of movable property first. The implication of this case is that a court can order the sale of immovable property to obtain payment in instances where a debtor is wilfully and intentionally acting in a way that frustrates the creditors’ right to obtain payment. For example, if the debtor has fled the country to avoid payment, or the debtor is hiding their movable property from the creditor. In conclusion, a creditor cannot, as a first resort, have the residential home of a debtor attached to recover payment of an outstanding debt. The creditor is first required to enforce payment by attaching the movable property of a debtor. However, there may be instances where a creditor can surpass/bypass attaching the movable property of a debtor and could have the immovable property of a debtor sold as a first resort. Reference List: https://www.theoutlier.co.za/economy/2024-04-08/87042/south-africans-debt-problem (accessed: 19-07-2024). Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others (CCT74/03) [2004] ZACC 25; 2005 (2) SA 140 (CC). Mapea v M.A Selota Attorneys and Another [2023] ZAGPPHC 437. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Contractual Consequences of Breaking Off an Engagement
Contrary to popular belief, an engagement is not a mere social agreement. South African common law recognises an engagement (or promise to marry) as a contract from which some contractual remedies may flow. The engagement contract is, however, a contract sui generis (of its own kind). Therefore, it gives rise to certain contractual remedies. If a party to an engagement refuses to marry or unduly delays the marriage, their conduct may constitute a breach of promise. Lawful termination of an engagement When an engagement is terminated lawfully no claim for damages will arise. An engagement can be terminated lawfully through the death of either party, mutual agreement to terminate, withdrawal of parental or ministerial consent (in the case of minors) and unilateral lawful repudiation. Unilateral lawful repudiation allows an innocent party to withdraw from the engagement if there is iusta causa (just cause). Just cause is present when there is a sound reason, which renders the prospect of a happy marriage unlikely, such as material misrepresentation or wrongful conduct. Unlawful termination and its consequences Unlawful termination is termination without just cause. A party who terminates an engagement unlawfully may be held liable for damages (based on the law of contract) and satisfaction (based on the law of delict). What are the contractual damages for unlawful termination? The wronged party will have a claim for breach of promise, which gives rise to claims for real damages and claims for prospective loss. A claim for real damages allows the wronged party to claim all reasonable expenses that they have incurred as a result of the proposed marriage. The Supreme Court of Appeal (SCA) has, however, stated in an obiter remark in Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) (herein after referred to as “Van Jaarsveld”) that the basis for such expenses “do not flow from the breach of promise per se but from a number of express or tacit agreements reached between the parties”. It still remains that the wronged party is entitled to such a claim. Claims for prospective loss are more controversial. The starting point for such a claim is positive interesse, meaning that the wronged party must be placed in the position they would have been in, had the contractual obligation been fulfilled. When this principle is applied in an unqualified way the wronged party may have a claim for half of the estate of the defendant and maintenance that would have been received during the marriage if they are able to prove that the marriage would have been in community of property. This is extremely speculative, and the court will not make such an award. Therefore, positive interesse is tempered by factors such as the expected length of the marriage, the age of the wronged party and the possibility of remarriage. The SCA is critical of these claims. In the case of Sepheri v Scanlan 2008 1 SA 322 (C) (herein after referred to as “Sepheri”) the court questioned the constitutionality of these claims and whether it is rational for an engagement to have consequences seemingly more severe than divorce seeing as the fault system is still applied. In Van Jaarsveld the court mentioned in its obiter that the calculation of prospective losses is “not capable of ascertainment…remote and speculative”. The SCA also confirmed in Van Jaarsveld that “the current approach to engagements does not reflect the current boni mores or public policy considerations based on the values of our Constitution”. The Effect of Cloete v Maritz on Future Contractual Claims for Breach of Promise In Cloete v Maritz 2013 5 SA 448 (WCC) (herein after referred to as “Cloete”) the plaintiff inter alia claimed damages reflecting her prospective loss. The defendant raised a special plea in which he claimed that this is no longer a valid cause of action in South Africa. The High Court found the previously mentioned obiter in Van Jaarsveld to be highly persuasive (although it was not binding on the court) and agreed that the Constitution requires a reconsideration of claims for prospective loss in light of the public’s prevailing mores. The special plea was accordingly upheld, and the court held that claims for prospective loss as a contractual remedy are no longer permissible under South African law. This new approach is in line with the notion in Van Jaarsveld that “an engagement is… more of an unenforceable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry”. The decision in Cloete v Maritz is not currently binding on courts for future cases of breach of promise, because it is merely a High Court decision and must be confirmed. However, the decision remains strongly persuasive alongside the obiter remarks of the of SCA in Van Jaarsveld. It is therefore unlikely that courts will allow claims for prospective loss in the future, especially considering Section 39(2) read with Section 173 of the Constitution and their mero motu duty to develop the common law which is in this case clearly outdated. References: Cloete v Maritz 2013 5 SA 448 (WCC). Constitution of the Republic of South Africa, 1996. Sepheri v Scanlan 2008 1 SA 322 (C). Thabane T “A Contract of Engagement as an Unenforceable Pactum de Contrahendo under South African Law: Distilling Lessons for Lesotho Courts” (2018) 32 Speculum Juris 54-65. Van Heerden B, A Skelton & Z du Toit (eds) Family Law in South Africa 2 ed (2021), Cape Town: Oxford University Press Southern Africa (Pty) Ltd. Van Jaarsveld v Bridges 2010 4 SA 558 (SCA). While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
The Subdivision of Agricultural Land Act No. 70 of 1970 Explained: Part 2
When considering the subdivision of agricultural land or dealing with inherited farmland that may be subject to disputes, there are several important factors to keep in mind. The Subdivision of Agricultural Land Act No. 70 of 1970 regulates the subdivision of agricultural land and elaborates on various aspects within the Act. This includes definitions relevant to the operation, actions that are excluded and prohibited by the Act, and rules governing the succession of subdivided agricultural land. In Part 2 of our series, “Explaining the Subdivision of Agricultural Land Act No. 70 of 1970,” we will examine the actions prohibited in relation to the subdivision of agricultural land, including any activities that constitute such subdivision. Additionally, we will explore the available remedies for violations of these provisions. Once again, it is emphasised that the primary purpose of The Subdivision of Agricultural Land Act No. 70 of 1970 (hereafter referred to as “the Act”) is to prevent the subdivision of farming units or their creation when such units are not economically viable. This objective is essentially achieved through the Act as the Minister of Agriculture, Land Reform and Rural Development of South Africa has to give his or her consent before any subdivision may lawfully be effected. The first three actions, which are prohibited by the Act, are: agricultural land may not be subdivided; no undivided share in agricultural land shall vest in any other person if such undivided share is not already held by a person; and no part of such undivided share in agricultural land shall vest in any other person if such part is not yet held by another person. The fourth action, which is prohibited, concerns the leasing of agricultural land and the renewal of such lease. The Act states that no one may enter into a lease for which the period of such lease is 10 years or longer. Neither may the length of the lease be the natural life of the lessee and/or the life of any other mentioned person in such lease. Further actions that are prohibited surrounding the leasing of agricultural land by the lessee, are the renewal of such lease either by the continuation of the original lease or by entering into a new lease and such continued and/or renewed lease being for an indefinite period or for the combined period of 10 years. The following actions are prohibited by the Act, except where such actions relate to the purposes of a mine as defined in section 1 of the Mines and Works Act. These actions include the selling or advertising for the sale of a portion of agricultural land, whether or not the latter is surveyed or contains any building thereon. Additionally, the sale or granting of a right to such a portion is prohibited if it extends for more than 10 years, lasts for the lifetime of any individual, or is granted to the same person in consecutive periods totalling more than 10 years. Section 3(f) of the Act states that no area of jurisdiction, local area, development area, peri-urban area or other area referred to in paragraphs (a) and (b) of the definition of “agricultural land” in section 1 of the Act, shall be established on, or enlarged to include any agricultural land. Lastly, it is necessary to provide public notice when a plan concerning agricultural land, or any part of it, has been submitted or prepared under the relevant ordinance. Therefore, if a person finds themselves in a situation where they are involved in the subdivision of agricultural land that aligns with any of the scenarios described above, such activities will be prohibited under the Act and deemed null and void. This means that such actions will need the prior consent of the Minister in order to comply with the Act. In part 3 of the series on “The Subdivision of Agricultural Land Act No. 70 of 1970 Explained”, we shall look at the procedure on how to apply for consent as required by the Minister. This will include the imposition, enforcement, or withdrawal of conditions by him or her, as well as any miscellaneous provisions. References: T Sewapa “Subdivision of Agricultural Farmland” 2016 p 1. Section 3(a)-(c) of the Act. Section 3(d) of the Act. 27 of 1956. Section 3(e)(i)-(ii) of the Act. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
Understanding Tenant Rights to Property Possession
It often happens that a tenant, for whatever reason, refuses, neglects or is unable to pay rent and falls into arrears. A landlord, frustrated with the tenant and the legal eviction process, may be tempted to find ways to get rid of the tenant. Cutting off water and electricity, changing locks, and using intimidation tactics are just some of the examples being used by landlords to dispossess a tenant. The tenant, however, is protected by law and has a right to undisturbed use and enjoyment of the property for the duration of the lease agreement. When a situation arises that disturbs this use and enjoyment, a tenant may approach the court for a spoliation order, otherwise known as a mandament van spolie, to restore his possession and/or use of the property. This article briefly explains the application and what needs to be proved by the tenant for the successful application of a spoliation order. The history and basis of a mandament van spolie South African property law is rooted in Roman and Roman-Dutch law. A distinction is drawn between ownership and possession, and different remedies exist to protect these rights. Ownership is seen as a real right and an owner can protect their right to property by the rei vindicatio action. The right to property, on the other hand, is the right to possess and use the thing and not a right to the thing itself, which is attributed to the owner of the thing. Only certain rights are protected, and they include servitutal rights (e.g. right of way or access to water) and contractual rights found in lease agreements (e.g. rights to electricity, water, and telecommunications). When an application is made, the court’s focus should not be directed at the merits of the case – it is not relevant at the time who the owner of the property is. The only factor that the court needs to establish is whether the applicant had possession and use of the property or thing and that their right to possess the property or use thereof was unlawfully interfered with (spoliated). The protection of specific performance (contractual right) cannot be enforced by using a spoliation application. For example, a lessee cannot use a spoliation application if the lessor refuses to hand over the keys to the lessee before occupation takes place, or if a tenant refuses to vacate a property after it is sold and a new tenant needs to take occupation. In these instances, the party will have to find recourse in contractual remedies or the eviction process. The application process and implications of a spoliation order A mandament van spolie is a remedy to restore possession and is usually brought on an ex parte urgent basis. Ex parte means that you do not have to give notice of the application to the other party before it is heard by the court. Its objective is to restore the possession of the applicant to the status it had before spoliation took place. The applicant will bring an application on notice or ex parte, and then an interim order with a return date (rule nisi) will be issued. The applicant must satisfy two requirements: that they were in peaceful, undisturbed possession and use of the property and that they were unlawfully deprived of that possession. The applicant will file a founding affidavit to set out the facts and establish the requirements. After an interim order is granted, the landlord is ordered to restore possession to the tenant. The Sheriff of the Court can be instructed to assist the applicant if the landlord still refuses to restore possession to the tenant. The landlord may file an answering affidavit and on the return date (rule nisi) the landlord will have the opportunity to prove that he legally took possession. The spoliation order is final; however, it can be taken on appeal. A landlord must be weary of tactics that will make him guilty of taking the law into his own hands. A spoliation order is not often refused, and the court may order that the landlord pay the costs of the application. The tenant may also lawfully refuse to pay rent while he is unlawfully deprived of the use and enjoyment of the property. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.