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December 2014
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The Golf Estate Rules That Sent A St Bernard To The Doghouse
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“To his dog, every man is Napoleon; hence the constant popularity of dogs” (Aldous Huxley)
Living in a residential estate means submitting yourself to all rules and regulations lawfully imposed by the estate’s management on residents. A recent High Court judgment illustrates.
It’s a Dog’s Life
- Theodore, a large St Bernard dog, is owned by long-time residents of a Golf Estate
- One of the estate’s Conduct Rules dealing with the keeping of pets - and motivated no doubt at least in part by the estate’s status as a nature conservancy - bans cats altogether and restricts dogs to breeds neither aggressive nor large (20 kg or over when mature)
- Since mature St Bernards weigh in at 55 – 80 kg, Theodore’s owners were refused the required written permission to keep him on the estate
- They asked the High Court to overrule this refusal, arguing that management has a discretion to allow a deviation from the rules
- The Court disagreed, holding that the rules are worded in such a way as to bind management to strict enforcement of the stated restrictions (other than a “truly exceptional” case such as a guide dog for the blind)
- Nor, held the Court, is it relevant that there are other large dogs already on the estate dating from a historical period of lax enforcement of the rules. Firstly, failure to enforce a breach of contract by one owner has no bearing on a breach by another owner. Secondly, whilst management did not sanction the presence of these other dogs it had been given legal advice to the effect that it would not succeed in any application for a court order removing them (which highlights a particular danger for management associations - see below).
The end result - Theodore’s owners have 3 months to remove him from the estate.
Buyers and Management Associations: Critical considerations
Buyers: Although media reports suggest that an appeal against this particular judgment is in the offing, never buy into a residential estate until you have fully understood and accepted all the rules and regulations you are agreeing to.
Management Associations: Critical to the Court’s decision in this case was the tight wording of the Conduct Rules in question – in formulating them, make sure that they will be enforceable. Take full legal advice in any doubt.
Secondly, do not make the mistake of having rules and then not enforcing them. In an earlier High Court case, the Home Owners Association of a Game Reserve was barred from enforcing its rule against the keeping of any domestic pets, because on the particular facts of that case it was held to have waived its rights to do so after an 8 year failure to take any enforcement action. Presumably that is why management in the “Theodore” case was advised to enforce its rules only against “new arrivals”.
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Are You About To Forfeit Your Annual Leave?
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The Basic Conditions of Employment Act (BCEA) sets a minimum of 15 annual days’ leave, and provides that this leave must be taken within 6 months of the end of your annual leave cycle. Clearly this is to encourage you to follow the healthy route of taking your leave regularly rather than accumulating it by working without a break for years on end.
Until recently however there have been conflicting court decisions as to whether or not such leave is automatically forfeited if not taken within the 6 month period
Use it or lose it
A new Labour Court ruling has now confirmed that you will indeed forfeit such untaken leave, so keep a careful eye on how much leave you are accumulating and in what annual cycle.
Note however that we are only talking about the BCEA’s 15 day statutory minimum here - if your employment contract entitles you to more than 15 days, whether or not you can accumulate that excess indefinitely will depend on your particular terms of employment.
Employers – take note!
Your employment contracts should set out your leave policy clearly and should specifically address what rules apply to accumulation of any annual leave in excess of the 15 day statutory minimum. Remember that you cannot contract out of the BCEA’s basic conditions except to provide your employees with more favourable terms. Consequently in this case a less favourable provision in the employee’s contract – to the effect that he had to take his leave within 30 days of his employer’s financial year end - was unenforceable.
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Agree, For The Law Is Costly”: Use The New Mediation Rules
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“Agree, for the law is costly” (old proverb)Our justice system has just taken an exciting new step towards broadening access to justice. From 1 December a new “court-annexed” mediation procedure will be available (piloting initially in Gauteng and North West) to help resolve disputes without the high costs, delays and hostilities often associated with litigation.
In areas where “court-annexed” mediation is not yet available, you should still consider the existing “private” mediation procedures for settlement of your disputes. Mediation is increasingly being used by both attorneys and their clients, and hopefully this trend will be given a further boost by the introduction of the new procedures.
Moving to “Win/Win”
Litigation tends to have a “Win/Lose” feel to it, whereas mediation, being voluntary and without prejudice to your case, and with its emphasis on “restorative justice”, will provide a better chance of “Win/Win” outcomes because you and your opponent yourselves determine the settlement of your dispute with the assistance of the mediator.
How does court-annexed mediation work?
- In a nutshell, an independent mediator is appointed to help you and your opponent/s resolve your dispute by helping you identify and prioritise the issues, by facilitating discussion between you, by exploring areas of compromise and by generating options for settlement.
- Note that mediation is entirely voluntary and that the mediator, unlike a judge or magistrate, does not make any decisions of fact or law, nor any findings as to witness credibility. He/she will rather try to help you and your opponent reach an agreement acceptable to you both.
- You can decide on mediation at any time –
- Before you even begin to litigate or
- After litigation has commenced, but then only with the court’s authority.
- You may agree to mediation on selected aspects of your dispute only, or on the whole dispute.
- Before trial commences, you can apply via a court official (clerk of court or court registrar) for mediation and a conference will then be convened to discuss whether one or more of your opponents agree to mediation.
- After trial commences, the court itself hears your application, and it may also of its own accord raise the possibility of mediation with you and your opponent.
- A signed written agreement to mediate is prepared with help from a court official and an impartial mediator appointed by agreement or by the court official.
- You both lodge written statements of claim and defence (unless court pleadings have already been filed).
- If you reach a settlement the mediator will help you draft a written settlement agreement which must be signed and can by agreement be made an order of court.
- You must both contribute equally to the mediator’s fees (which are set by tariff).
- Everything said and all documentation lodged during the mediation is confidential and cannot (with a few specific exceptions) be used as evidence in any subsequent court proceedings.
Can your attorney represent you?
Yes. You must attend the mediation personally, but you don’t need to go it alone. You can be legally represented, albeit at your own cost. Don’t make the mistake of waiving your right to legal representation unless you are 100% comfortable with your own ability to present your case properly and to best effect.
Is court-annexed mediation available all over SA?
Unfortunately not yet – only certain districts and sub-districts in Gauteng and North West have been gazetted for piloting from 1 December. Hopefully the rest of the country will follow shortly.
In the meantime no matter what province you are in, take advice on using the existing “private” mediation procedures as an alternative.
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Property Sellers And Alien Invaders – Your New Duty To Disclose
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“Humankind has not woven the web of life. We are but one thread within it. Whatever we do to the web, we do to ourselves. All things are bound together. All things connect” (Chief Seathl)
Property sellers: Your lives have just been made more difficult, albeit in the best of causes. NEMBA (The National Environmental Management: Biodiversity Act) imposes onerous duties on landowners and others for the control or eradication of listed plants, animals, birds, fish etc deemed to be invasive (and therefore destructive of our environment, our biodiversity, our livelihoods and our economic development).
Prior written notice to the buyer required
Now new regulations require you as a property seller to notify the buyer in writing, before conclusion of your sale agreement, “of the presence of listed invasive species on that property.”
Failure to comply will expose you to the risk of both substantial criminal penalties and potential liability to the buyer, but compliance is not going to be a simple matter. The species lists are extensive, with lists of exempted species, prohibited species, and different categories of species requiring eradication, control or application for a permit. To complicate matters even further, some species are subject to different categorisation in different provinces, so for example an invasive plant requiring eradication in one province may require only control in another. “Invasive Species South Africa” have useful lists and other resources on their website www.invasives.org.za but seek professional help in any doubt and in particular ensure that your sale agreement is correctly worded to protect you.
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CIPC’s Festive Season Closing Dates
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CIPC (Companies and Intellectual Property Commission) offices will be closed to the public from 10 a.m. on Wednesday 24 December 2014 to 8 a.m. on Friday 2 January 2015.
Lodgment of documents will be accepted on Tuesday 23 December 2014 until 3.30 p.m.
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The December Websites: Relax ….. Unwind ….. Recharge Your Batteries For 2015
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Time to recharge your batteries in readiness for a happy and productive 2015.
Relax, unwind a bit.
Enjoy these totally random ideas to help you on your way –
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