|
NEIGHBOURS - WHAT RIGHT DO YOU HAVE TO SEE BUILDING PLANS?
Your neighbour lodges building plans with the municipality to build a block of flats that will, you believe, substantially reduce the value of your own property. Are you automatically entitled to a copy of the plans and a hearing from the municipality before it decides whether to approve the plans?
The short answer is that normally you are not entitled to be consulted, but in practice you may find your local authority consulting you anyway, following a new Constitutional Court ruling.
It is established law that where, for example, a title deed condition is being infringed, interested parties must get prior notice; and building regulations may require notice in other specific instances.
In all other cases, although procedural fairness requires that anyone who is affected by an administrative decision must be given a hearing before the decision is taken, the Constitutional Court has now held that that only applies where "the administrative action affects materially and adversely" your "rights or legitimate expectations."
So what exactly is a "legitimate expectation?" Just being a neighbour isn't enough. A legitimate expectation, the Court held, "cannot arise from ownership of a neighbouring property" - you are only entitled to a hearing before approval of plans where - You have been expressly promised such a hearing, or
- It is your local authority's regular practice to do so (which is unlikely).
However, the Court further commented: "it will be helpful and enhancing to the process if the Building Control Officer .....invites, from owners of neighbouring properties, representations about the impact the proposed building might have on their properties." In practice therefore you may find that you will be consulted, even though this is not legally required.
It's still worth lodging a full objection with your local municipality immediately if you happen to get wind of plans in advance - but if you don't, you are left with attacking the plans after the approval. If your property's value is at risk, do so without delay.
Developers and property owners trying to get building plans through their local Council - already a lengthy process - could find the process even slower if Councils decide to consult neighbours even in cases where this is not strictly necessary.
WHAT'S IN A (COMPANY) NAME?
The Registrar of Companies can order a company to change its name where the name is similar to that of another, existing company, but only where the existing company is able to show - - That it has "such vested rights in its name, or particular words in its name, that the registration of the new company is undesirable;" or
- That "confusion or deception" is likely and "will probably cause damage."
In a case recently before the High Court, the holder of a registered mark "Aluminium City" failed to stop a company using the name "City Glass and Aluminium". The Court, having considered the "overall impression given by the marks", and their "sense, sound and appearance," concluded that there was no likelihood of confusion. The question really boils down to "whether the average customer is likely to be deceived or confused."
YOUR SECURITY GUARD SHOOTS A TRESPASSER: ARE YOU LIABLE?
You may be liable if an armed security guard, employed to protect your home, shoots a trespasser unlawfully. Some guidance on how to avoid such liability comes from a recent Supreme Court of Appeal case, in which a homeowner was held not to be liable where: -- He had contracted a security company "which he was entitled to assume had the necessary expertise and that would operate within the confines of the law,"
- He "enquired about the proficiency of the security guards concerning the use of firearms. He was reassured,"
- His past experiences with the security company "must have been a further cause for reassurance."
The message is clear - be careful whom you contract to provide your security; and don't just assume that the uniformed guy with the shotgun can be trusted to shoot only when it is lawful to do so.
PROPERTY SELLERS NOTE - THE DANGER OF THE "ACCEPTABLE" BANK GUARANTEE
If your property sale agreement provides for the buyer to lodge a bank guarantee "acceptable to the seller" for the purchase price, you as seller have a lot less protection than you may think. That's because, as confirmed in a recent Supreme Court of Appeal case, you have no right to willy-nilly reject a guarantee as "unacceptable" - you must act "reasonably" and "with honest judgment", in making that decision.
In the case in question, the Court held that the seller had no right to reject a conditional guarantee from the bank. And it seems that the "standard" guarantee is always likely to be conditional, allowing the bank to withdraw on notice to you (usually if it thinks its security is prejudiced or the transfer is delayed).
So your risk is that months down the line, the bank could suddenly pull its guarantee, leaving you high and dry. If you want a truly unconditional and irrevocable guarantee, your agreement must say so in express terms (just bear in mind the practical issue that the more stringent your requirements, the more difficult it will be for your buyer to comply).
DRUGS - COURTS DECLARE WAR ON DEALERS
The growing scourge of drug abuse in South Africa has affected us all - if not directly, then as victims of the high levels of social disruption, violent crime and corruption that inevitably go hand-in-hand with drug trafficking. Our legal system is fighting back, as evidenced by a recent High Court judgment confirming a sentence of 12 years' imprisonment handed down to a dealer for his first drug-related offence.
Holding that "the personal circumstances of [the dealer] pale into insignificance when considered against the gravity of this offence", the Judge warned that "...… our courts will not hesitate to impose particularly severe sentences which are intended to act as deterrents even for those who dabble in drugs and prohibited substances. To my mind, drug-dealers deserve no sympathy or pity. They must face the full might of the law."
"Severe as [the sentence] might be" concludes the judgment; "it is intended to send a clear message to all drug dealers that our courts have finally declared war on them."
THE HELICOPTER, THE "TEST FLIGHT" AND THE SPOLIATION ORDER
No one can take the law into his or her own hands. So if you are in possession of any property (a car, a house - anything) and are deprived of it without legal process, you can approach court for an order (a "spoliation order") for immediate return of the property to you. Apply immediately - delay may prejudice your case.
All you need to prove is that -- You were in "free and undisturbed" factual possession;
- You were deprived of possession by force, or wrongfully, or without your consent *;
- It is physically possible for possession to be returned to you.
Questions such as who is owner, who has a legal right to possession etc, are irrelevant at this stage - once the above requirements are met, the court will order immediate return of the property to you.
* Removal by "false pretences" is enough, per a recent High Court decision where the lessor of a helicopter had removed it from the lessee under the guise of taking it for a 'test flight'.
A DOG'S TAIL - THE LONG AND THE SHORT OF IT
We are going to be seeing a lot more long-tailed Boxers, Dobermans and Jack Russells around following a 1 June ban on tail docking by the South African Veterinary Council, which has the statutory power and duty to regulate the veterinary and para-veterinary professions.
The Council warns that vets breaching this ban will be liable for prosecution and, if found guilty, "will automatically be investigated for unprofessional conduct." It seems that anyone who docks a tail, registered vet or not, now risks prosecution. Breeders and purchasers need to be aware that that risk could conceivably also extend to anyone who commissions or allows an unlawful docking.
WEBSITE OF THE MONTH: PREPARE YOUR CRIME CHECKLIST NOW!
Smash and grab, armed robbery, hijack, burglary - sad as it is, these are all daily risks for us South Africans. And if you are unfortunate enough to be on the receiving end, your trauma is going to be compounded if you don't react immediately to the loss of your wallet/handbag, credit cards, cell phone, keys etc.
Be prepared! Find a checklist of what to do, and who to contact, in the "My Money" section of the iafrica website at http://personalfinance.iafrica.com/expert_advice/904714.htm.
Stay Safe!
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
|
 |
