A ROOM WITH(OUT) A VIEW - YOUR RIGHTS

You buy a house. It has a magnificent view; which is why you bought it, and why you paid so much for it. What do you do when the neighbour decides to go double-story and turn your sea-view into a view of his upstairs bathroom window? You stand to lose not just enjoyment of the view, but probably a significant slice of the property's market value as well. On the other side of the coin, perhaps you want to build or extend a house, and need to know whether you must take the neighbour's view into account.

In a recent decision, the Cape High Court has set aside a local authority's approval of building and deviation plans where height restrictions were exceeded. The failure to comply with the height restrictions affected the sea view from the neighbour's property, with a resultant derogation from the value of the neighbour's property.

A landmark Supreme Court case in 2003 established the need in principle for local authorities to take into account any potential loss of view when considering plans for approval. However that is not to say that a view is automatically protected - in a later interpretation of that case, it was held that mere compliance with all applicable building and other regulations is sufficient to oblige the Local Authority to approve plans. So your first line of defence is to do your homework before even buying your dream house or plot - check what building regulations and restrictions apply, who owns the surrounding property/ies, whether there are any title deed restrictions etc.

If in doubt when buying or building, or if you get wind of an application for building plans that might affect your view, take legal advice immediately. It may be critical to take action before construction actually starts, so don't delay.



WHEN "WITHOUT PREJUDICE" IS NO PROTECTION

Generally, the law regards as privileged (i.e. protected from disclosure) negotiations between parties aimed at settlement of disputes. A settlement proposal is consequently privileged. Except, held the High Court recently, when it contains an admission of insolvency - then it can be used to prove the debtor's insolvency in an application to sequestrate the debtor's estate. No protection was gained from marking the settlement proposal "without prejudice", nor from stating that it "must be handled with the strictest of confidentiality and may not be used to prove an act of compromise as envisaged by the provisions of the Insolvency Act".



THE DANGERS OF DOMICILIUM (AND PUT TONER IN THE FAX MACHINE!)

Contracts often require that each party chooses a domicilium citandi et executandi (often referred to as a "domicilium"). Documents served or delivered at the domicilium are deemed to have been received even if in fact they are not. This makes it a lot easier for parties to prove service on or delivery to the other, but whenever you change address, remember to advise the other party/ies in writing of the change in your domicilium - otherwise you could find vital notices, even summonses, not reaching you, with potentially disastrous consequences.

Secondly, make sure that notices delivered to your domicilium will actually come to your attention. In a recent case, a buyer of property didn't see a faxed demand because his fax machine was out of toner and didn't print it. The consequent cancellation of the contract was held to be valid; the Court held that the demand had been received at the domicilium, even though not read.



TAKING SURETYSHIP FROM A CC? GET CONSENT FROM THE MEMBERS!

When you supply on credit to a customer, one way of reducing your chances of a bad-debt write-off is to take suretyships from related entities. If you take suretyship from a Close Corporation, watch out for a provision in the Close Corporations Act requiring "the express previously obtained consent in writing of all the members".

Recently, the Supreme Court held that a suretyship signed by a sole member of a CC was valid even though the member hadn't first given himself "express written consent" - it would have led to an absurdity to insist on the member giving himself permission to sign the suretyship. But the requirement is in the Act; so don't leave any room for argument no matter how many members there are. Obtain and file a suitable consent signed by all the CC's members. To be safe, update your standard credit agreement to provide accordingly.



AND NOW A TRUST CAN BE A MEMBER OF A CC

The Close Corporations Act has been amended to make it easier for inter vivos ("living") trusts to become members of close corporations - previously only testamentary ("will") trusts had this option. If your need to have a trust as holder of the membership interest has held you back from converting a company to a CC, or from forming a CC, now is the time to re-look at the situation.



WATCH WHAT YOU SAY - THERE ARE WORDS THAT BIND

When will the law regard a verbal agreement as legally binding? With few exceptions (the most common being sale of land), "your word is your bond" - once you and the other party are agreed, a valid contract has come into being, and you can both be held to it.

You may think that if, at the negotiation stage, you agree that a written contract will be drawn up, no binding commitment will arise until such a contract has actually been written down and signed. Not so - if that is your intention, you must make that clear. Without a clear indication to the contrary, the law assumes that you only wanted a written contract to facilitate proof of the terms of your verbal agreement, not that you didn't want to be bound by it.

Thus, in a recently reported Labour Court decision, a contract of employment was held to have come into force on the strength of an e-mailed "Offer of Employment", which set out an agreed package and provided for a formal contract of employment to be drawn up later. The fact that the formal contract never materialised was irrelevant.



THE MONEY OR THE JOB. BUT NOT BOTH

Retrenchment is traumatic, but in a free economy it is sometimes unavoidable. In the case of dismissal for operational reasons, an employee can claim severance pay; but this claim is lost if the employee unreasonably rejects an offer of alternative employment. Until recently it was unclear what happens to the severance pay claim where the offer of alternative employment is accepted. Now in the Labour Appeal Court it has been held that, when a company outsourced its canteen and the canteen workers were offered alternative employment at the same rates of pay, their acceptance of this offer disentitled them to severance pay. In effect, the legislation encourages the employer to find employees alternative work, and rewards the employer for doing so.



WHEN SILENCE = CONSENT

Is silence ever consent? Although as a general rule the answer is "No" - you must actively agree to any offer before you are held to have accepted it - there is an important exception. "Silence is equivalent to consent when it is one's duty to speak," says the law. For example, the Labour Court held recently that an employee was bound by a change to a healthcare scheme when he failed to respond to letters warning that a failure to respond would be taken as an acceptance of the changes.

So, if you receive an offer or notification which tells you that your failure to respond will be taken as consent, only keep quiet if you are in fact consenting. If you object to or reject the proposal, say so, and do it in writing.

On the other side of the coin, if you are the party seeking agreement to something, and if it is for some reason impractical for you to obtain specific consent from recipients, there will be cases where you can take a failure to respond as acceptance; but then make sure that the notice you send is properly drafted, and that the circumstances are appropriate.




WEBSITE OF THE MONTH : GET SAFE ONLINE

The Internet is a powerful and constantly expanding resource; indeed, access to it is now an essential component of many businesses. However, the threats that lurk in cyberspace are both multiplying, and becoming more sophisticated, at an alarming rate. You need to protect yourself from a multitude of perils - there is now a 50% likelihood of an unprotected computer being infected with something nasty within 12 minutes of connection to the Internet.

If you are a business or individual without continuous support from an I.T. professional, your challenge is finding out how to protect your computer, prudently and at reasonable cost. For a layperson's guide try the "Get Safe Online" site at www.getsafeonline.org. It will alert you to the most important risk areas and advise on preventive action. There are links to sites that will automatically probe your existing defences for vulnerabilities, and to sites offering anti-virus software, firewalls etc (much of it free).


STAY SAFE!

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