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Levy And Rental Defaulters: They Can Run, But Hiding Just Got Harder!
Driver Demerit System Rolling Out Countrywide - The Timetable
The Bond Clause: No Due Date = Dispute + Delay!
Constructive Dismissal: What Is It? How Do You Prove It?
The Close Corporation, The Member Wife, And The Unauthorised Husband
Cluster Homes And Deviating From The Building Guidelines - When You Can, And When You Can't
What's In My Muesli? New Controls On Food Labelling, Advertising
The June Website: You, Your Business, And YouTube ….....
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| JUNE 2010 |
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LEVY AND RENTAL DEFAULTERS: THEY CAN RUN, BUT HIDING JUST GOT HARDER!
"Close your eyes -
Landlord knocking
On the back door."
(Jack Kerouac; Northport Haiku) Two recent High Court decisions hold good news for bodies corporate and landlords - defaulting sectional title owners and tenants cannot hide behind the debtor protection provisions of the National Credit Act.
In summary, the NCA debt counselling process, with its inherent delays and risks for the creditor, does not afford protection to: - - Sectional title owners in respect of arrear levies
- Tenants of leased properties - in respect not only of arrear rentals, but also associated utility charges (rates, electricity, water, sewerage etc).
DRIVER DEMERIT SYSTEM ROLLING OUT COUNTRYWIDE - THE TIMETABLE
The AARTO traffic fines system is serious stuff, particularly from November when the points-based demerit side of the system commences. If you run up 13 or more demerits, your driver's licence/professional driving permit/operator card will automatically be suspended (3 months' suspension for every point over 12). And 3 suspensions will result in full cancellation.
The general payment and enforcement provisions (but at this stage minus the points system) are currently effective in the Tshwane and Johannesburg areas. Despite problems and challenges arising during these pilot phases, AARTO has now been gazetted for roll-out countrywide as follows: -- 1 July 2010 - Cape Town, eThekwini, Ekurhuleni and Nelson Mandela Bay Metropolitan Municipalities
- 1 November 2010 - rest of South Africa (and commencement of the points system)
Forewarned being forearmed, learn all about it now at the official AARTO website www.aartosa.co.za.
Note that there is some good news in all this - substantial discounts apply for early payment of fines. But there are also significant risks, so take advice in doubt.
THE BOND CLAUSE: NO DUE DATE = DISPUTE + DELAY!
If your property sale is subject to a suspensive condition (such as the buyer obtaining a bond), ensure that a specific time limit is clearly stated. Otherwise the buyer has by implication of law a "reasonable time" within which to obtain the bond - and, since you can't start looking for another buyer until the existing sale has definitely lapsed, that's a recipe for uncertainty, dispute, and costly delay.
What is or isn't a "reasonable" period of time depends, per a recent High Court decision on -- The "peculiar circumstances" of each case, and
- Factors such as
"...... the contemplation of each of the parties at the time of entering into the contract",
"......... any particular difficulty or cause of delay that might or did arise, if it was reasonably foreseeable", and
"......... the commercial interests of each of the parties."
To illustrate - as a general rule 6 weeks may seem like plenty of time to get a bond, but in this particular case the seller was unable to convince the court that it was indeed enough, and lost the case.
Avoid all those grey areas - sign nothing until your attorney has vetted your sale agreement for both certainty and enforceability!
CONSTRUCTIVE DISMISSAL: WHAT IS IT? HOW DO YOU PROVE IT?
Both employers and employees need to bear in mind the principle in our labour law that protects employees from being forced into resigning.
Such a forced resignation is regarded as being "constructive dismissal" - defined as taking place when an employee terminates his or her employment contract "because the employer made continued employment intolerable for the employee."
As illustrated in a recent Labour Court case: -- The onus is on the employee to prove constructive dismissal
- His/her perception of the situation must have been objectively reasonable in the circumstances
- The resignation must be an act of "final resort when no alternatives remain"
- A change of terms and conditions of employment will amount to constructive dismissal only if "the employee could not reasonably be expected to endure the situation", or if it goes "to the root of the employment relationship".
The employee in question headed her resignation letter "Forced Resignation", and asserted (with reasons) that: "The situation at work has become totally unbearable to the extent that I cannot tolerate continuing employment any longer". In the end however she was unable to convince the Court that, objectively speaking, the employer "had created an environment which left the applicant with no option but to resign". Her claim of constructive dismissal failed accordingly.
THE CLOSE CORPORATION, THE MEMBER WIFE, AND THE UNAUTHORISED HUSBAND
Don't deal with any close corporation without checking that whoever represents it has the authority to do so - otherwise your agreement literally won't be worth the paper it's written on.
For example, a property sale agreement was recently held by the Supreme Court of Appeal to be invalid where it had been signed, not by the sole member of the CC which owned the property, but by her husband. Because the husband hadn't been authorised in writing by his wife to conclude the sale, it was held to be null and void.
Where immovable property is involved, the authority must be in writing. But even in cases where verbal authority will suffice, play it safe and avoid dispute down the line by insisting on seeing - and keeping on file - written proof of authority.
Moreover even when your dealings are direct with a CC's member/s, you should still check for proper authorisation. The High Court recently held that a member holding a 50% interest in a CC could not institute legal action on behalf of the corporation without a members' resolution authorising him to do so. The other 50% member having died, the executor of his deceased estate now stepped into his shoes, and the surviving member could not act unilaterally.
As if that doesn't complicate matters enough, note that different rules apply to companies and trusts. Be careful; don't sign anything until your lawyer has checked it for you!
CLUSTER HOMES AND DEVIATING FROM THE BUILDING GUIDELINES - WHEN YOU CAN, AND WHEN YOU CAN'T
A Home Owners Association's constitution will invariably bind all its members to a set of architectural and building requirements which, in order to protect the rights of all home owners, controls aspects of the design and position of buildings and other structures within the complex.
But where deviations from such requirements are "minor", it seems that the courts may well condone them. Thus the High Court recently refused to order a complex homeowner to remove a wire mesh fence erected by him. Although the fence was not, as required, "Bekeart mesh", the Court held that: "To the untrained eye the difference will hardly be noticeable. If creepers are planted (as should be encouraged in terms of the constitution) it will be impossible to tell if it is plain wire mesh or Bekeart mesh". It seems that "noticeability" could be the key consideration here.
This practical approach however has its limits - any "absolute or peremptory" requirements must be strictly complied with. Take advice in doubt.
WHAT'S IN MY MUESLI? NEW CONTROLS ON FOOD LABELLING, ADVERTISING
New Department of Health regulations will control what must (and must not) be included in labelling and advertising of all foodstuffs. The idea is to assist consumers to make fully informed, healthy food choices based on clear disclosure of nutrient content in food products.
Although most of the regulations only come into effect on 1 March 2011 - giving non-compliant food manufacturers and importers 9 months now to get their houses in order - there is one exception, namely the misleading practice of labelling contents as a "negative percentage" (such as "95% fat-free"). From 1 June 2010 disclosure must be correctly stated in the positive ("5% fat"), and that applies not only to fat content, but to other components as well (sodium, energy, cholesterol etc).
"Trans fat", with its reputation as a significant health risk, is of particular interest to consumers, but will unfortunately only be dealt with later in separate regulations. A draft of these is currently open for public comment until the end of June.
THE JUNE WEBSITE: YOU, YOUR BUSINESS, AND YOUTUBE .........
Consider this: -- At long last we have uncapped broadband.
- There are now over 2 billion YouTube video views daily.
- YouTube South Africa has just launched (find it at www.youtube.co.za).
Put all that together and now's your big chance to boost your business with nothing more complicated than a short video or two.
How? First, read "How to Use YouTube to Drive Business" in the War Room section of Business Insider's website at http://www.businessinsider.com/youtube-business-2010-2#why-should-you-use-online-video-1. (Don't lose sight of your 3 main Goals here: "Inform, Educate and Entertain". See page 2/12).
That's mostly generalised advice, so next, search online for ideas relevant to your particular business model. There's a huge amount of free advice out there!
Don't worry about cost. It's virtually free - in the Internet Age, even the smallest business can have as big a footprint as the largest corporate!
Enjoy Your June!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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