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BEWARE THE VERBAL SALE OF LAND!
Sales of land are only valid when written, and signed by both parties (or their agents under written authority).
Strangely enough however, it is still possible in a practical sense for land to be sold via a verbal contract - if, that is, the land is held by a company, close corporation or trust, and if the sale is not a sale of land by the entity, but rather a sale of the shares or member's interest, or an agreement to change the beneficiaries of a trust. Note that where land is sold out of the entity and the shareholding remains as is, the normal requirement for a written sale remains.
The danger is that verbal agreements are fraught with risk - difficult to prove, hard to interpret, and generally a recipe for long and expensive litigation in the event of any disagreement. Moreover, the sale of an interest in an entity has implications - legal, commercial and tax - very different to the sale of land held by a natural person.
So before buying or selling an interest in any type of land-owning entity: - - Make it clear that there is no deal without a signed, written agreement, and
- Be aware that (as happened in a recent case before the Supreme Court of Appeal) mere conduct may result in your being bound by an agreement that you haven't signed. So don't act as though you have agreed to something if you haven't, and
- Sign nothing before having the agreement fully checked.
SIMPLER (AND MAYBE LESS) TAX FOR SMALL BUSINESSES - AND OTHER CHANGES
Some of the more important changes introduced by the new tax laws promulgated in January are: -- "Micro business presumptive turnover tax" - if your turnover is under R1m, you may qualify for a move to this system, which replaces income tax, CGT, STC and VAT. There is a potential tax saving, and certainly less compliance cost and administrative burden - but for some businesses it will still be better to stick with the current system, so take advice before jumping in.
- The compulsory VAT registration threshold increases to R1m from 1 March.
- Provisional tax - your second provisional tax payment can no longer be based on your last assessment, but must now be no less than 80% of actual income to avoid penalties (there is a one-off concession by SARS for payments due by 28 February 2009 only).
- Fringe benefit tax is no longer payable on employees' personal use of employer-provided "telephone or computer equipment which the employee uses mainly for the purposes of the employer's business" - that should cover cell phones, laptops, modems etc.
- STC payable by the company will be replaced by a dividend tax payable by the shareholder. Although this change is only likely to come into effect later this year or in 2010, your current tax planning should take it into account - the definition of "dividend" will be widened, and the effective cost to shareholders will increase.
RISKY SPORTS: ARE YOU CONSENTING TO INJURY?
Before you next run onto a rugby field, leap onto your motorbike for a race, or decide to watch cricket from a stand within range of a "Sizzling Six" from Albie Morkel, bear in mind that our law will not allow a claim for loss or injury by anyone who "willingly consents to an activity involving risk of harm".
In other words, if you suffer injury or loss, you have no claim for damages - and, if your insurance policy excludes the risk, that's a big problem. If on the other hand you caused the injury, you have a defence to the injured person's claim, provided you can show that he/she: -- Knew the risk (it must be foreseeable), and
- Appreciated the ambit of the risk, and
- Consented to the risk (e.g. by voluntarily partaking in the game or activity).
However this "consent" defence has its limits. Whilst it will cover a mere "error of judgment" or "momentary lapse in skill", it will not apply to a deliberate action, or to a "reckless disregard for safety" (evidenced perhaps by play in total violation of the rules of the sport).
Thus in a recent High Court matter, where a motorcyclist rode around a circular track the wrong way and collided with another participant in a race, he was held liable on the grounds that he "showed a reckless disregard" for the other rider's safety. His actions were held to have been " grossly unreasonably both insofar as the rules of motor cycling are concerned and also from an appreciation of the risks inherent in a dangerous sport."
WARNING! SEVERE SANCTIONS FOR RACIAL DISCRIMINATION IN THE WORKPLACE
The consequences for any employer guilty of racially discriminatory practices are severe. In a recent Labour Court case, an employer was held to have unfairly determined an employee's pay on the basis of race, and to have unfairly dismissed her for exercising her right to refer the practice to a bargaining council for conciliation.
The Court, commenting that such conduct "calls for a high sanction", awarded the employee compensation of 20 months' salary, plus the differential in salary for a year, plus the costs of the claim.
Make sure that all your employment practices are recorded, transparent, and fair.
COMPUTER PROGRAMS - WHO OWNS THE COPYRIGHT?
"Only one thing is impossible for God: To find any sense in any copyright law on the planet." (Mark Twain)
Original computer source code can be worth a fortune, but who owns it - the employee who wrote it, or the writer's employer?
The answer, the Supreme Court of Appeal decided recently, is largely a factual question: -- Normally copyright will be owned by the "author" of a computer program - being the maker or "the person who exercised control over the making of the computer program";
- However an employer will own the copyright in the case of a work "made in the course of the author's employment by another person under a contract of service". Critically, there is no requirement that it be made in the course of the "normal duties" of the employee - so the Court held computer programs developed by a meteorologist to belong to his employer even though "one would not ordinarily include computer programming as part of the duties of a meteorologist";
- There are no "generally applicable rules to determine whether or not a work was authored in the course of the employee's employment. It remains by and large a factual issue that depends not only on the terms of the employment contract but also on the particular circumstances in which the particular work was created".
That's a wide and imprecise test - avoid doubt by having all your employment contracts drawn to cover this whole issue of copyright ownership (not just for computer programs - all inventive work needs to be dealt with).
PROMISES, PROMISES ………
Don't promise to marry someone lightly - such a promise gives rise to an enforceable engagement contract, and if you breach it without sufficient justification, you could be in for substantial damages claims - not just for any monetary loss, but also for consequences such as wounded feelings, embarrassment and humiliation.
Until 1838 you could have been forced to proceed with the marriage, so perhaps a monetary penalty isn't so bad after all! But the point is that an engagement and promise to marry is not just a personal and romantic occurrence - it has legal consequences, and - as illustrated by a recent High Court award of R282.413 in damages to a jilted fiancée - those consequences are still very much a part of our modern law.
FEBRUARY WEBSITE: VALENTINE'S DAY THE ONLINE WAY!
Gift ideas, poems, recipes, games, movies, e-cards - even a "Valentine's Day Survival Guide", and a joke about lawyers - find them all on these sites: - Send FLOWERS via sites such as NetFlorist (www.netflorist.co.za) and kalahari.net (www.kalahari.net/flowers/42596.aspx).
P.S. If you haven't registered to vote yet, don't miss the IEC's "Final Registration Weekend" on 7-8 February 2009 - visit www.elections.org.za/ now!
Have A Romantic February - The Month of Love!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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