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NUISANCE NEIGHBOURS
(OR, DON'T LIVE IN A GLASS HOUSE ON A GOLF ESTATE)
Relations with your neighbour sour because his dog howls at the moon all night, or because your gutters are forever clogged with leaves from his trees - what are your legal rights if a polite attempt at negotiation fails?
With noise and health issues, the police have powers to prevent a "disturbance of the peace", and most local authorities have bylaws controlling the permissible amount of noise and other pollution in an urban area. So a report to SAPS or to the local municipal law enforcement office may bring results (but bear in mind that other crime issues will receive more priority).
Alternatively, the Courts will come to your assistance if the "nuisance" amounts in all the circumstances to an unreasonable and unfair interference in your rights. The law balances an owner's rights to use his property as he likes, with his neighbour's right not to have his enjoyment of his own property unfairly interfered with.
The High Court recently declined to assist owners and occupiers of houses next to a golf course, who complained about the number of stray golf balls hitting their houses, with the comment "Living next to a golf course brings certain benefits in relation to the environment in which one lives. However, it also entails a real danger that the properties so situated will be susceptible to being hit by golf balls. That is a risk that any reasonable person will accept."
DIVORCED AND SURVIVING SPOUSES GET A TRANSFER DUTY BREAK
If your divorce (or the death of your spouse) gives you ownership of immovable property you would, until recently, have been forced to pay transfer duty. No longer - as from 25 July 2006, registration of transfer is free of duty. Although there will still be other costs payable, the saving is substantial.
BUYING A BUSINESS? YOUR RESTRAINT OF TRADE CLAUSE MIGHT BE INVALID!
When you buy a business, it makes sense to prevent the seller from immediately re-entering the field in direct competition with you; the sale agreement should have a tightly-worded "restraint of trade" clause to enforce this.
But be aware that the Competition Tribunal has recently held such a clause to be invalid as a "restrictive horizontal practice", by "dividing the market". Ensure therefore that the agreement as a whole fully protects you from any attempt to negate the restraint clause, and that you take other steps to protect the goodwill and intellectual capital you are buying. If you can't achieve that, consider whether it is worth the risk of buying.
A HORSE! A HORSE! MY KINGDOM FOR A (PROPERLY DRAWN) INDEMNITY CLAUSE!
If you own a domestic or domesticated animal, you are liable for any damage it may cause if either
- You are negligent, or
- The animal acts "contrary to the nature of the class of animals".
This latter ground ("pauperian liability") is a potential minefield; you could, without any fault on your part, end up being liable for huge damages (think of fatal dog bites, traffic accidents caused by cattle, "tame" elephants trampling visitors to a game farm, etc).
Check that your insurance covers you for both types of liability. And, if you allow others to interact with your animals (horse riding for example), insist that they first sign an indemnity that exempts you from any liability in express and unambiguous terms. A recent Supreme Court judgment (concerning injuries caused by a horse to its rider after bolting) confirms that, drafted correctly, an indemnity is an adequate defence. But in other cases, indemnity clauses have been found wanting - so don't just use a standard clause, get proper advice.
P.S. If you are the party signing the contract, please read it and understand the effect of all its terms - see the next article for a cautionary tale in this regard.
FINE PRINT: WHAT YOU DON'T KNOW CAN HURT YOU!
"Education is when you read the fine print; experience is what you get when you don't" (Pete Seeger). The "experience" part could be very painful indeed, so always read the fine print in contracts. The Supreme Court has recently confirmed the old legal principle that you are bound by terms in a contract which you sign without reading, knowing that it contains standard terms and conditions, but indifferent to what they are.
CLEANING UP A BAD CREDIT RECORD
Having a court judgment against your name will leave you struggling to obtain any form of credit - which can effectively block you from buying property or anything else on credit. And it can happen to anyone; a default judgment is one granted because you didn't defend a claim, and that could be because you were unaware of a summons issued against you.
Don't despair - you can apply to Court for the judgment to be rescinded. In the absence of written consent to rescission from the creditor, what you need to show (per a recent High Court decision), is "good cause" for rescission, entailing: -
- A reasonable explanation for the default;
- Proof that the application is bona fide and not made with the intention of merely delaying the claim; and
- Proof that you have a defence to the claim.
But don't delay - you have 20 days from learning of a judgment against you to apply for rescission, otherwise you will also have to explain your delay in applying to the Court.
TENDER FRAUD - YOUR REMEDY
A recent Supreme Court judgment dealt with the question of an employer's liability for its employees' dishonesty. The case concerned a company that lost out on a government tender as a result of the corrupt actions of officials charged with awarding the tender.
The Court held that the actions of the officials were sufficiently "tightly aligned to the functions they were employed to perform" to make the state liable to pay damages to the unsuccessful tenderer. So if you lose a tender, find out why - if there was fraud involved, you may well have a claim.
FRAGMENTING THE FARM - NO WAY TO SIDESTEP THE MINISTER
Subdivision of agricultural land is strictly controlled, and a sale of a portion of such land is only valid if authorised by the Minister of Agriculture. You cannot get around this requirement by putting a condition in the sale agreement that it is subject to the Minister's permission: in a recent judgment, the High Court has held that such a contract is invalid from inception, and cannot be revived by subsequent granting of consent.
WEBSITE OF THE MONTH: BRAND SA'S SHOWCASE
"South Africans, get wise to a range of services, advice and information freely available to you" suggests the "South Africa Gateway" website at www.southafrica.info.
Published by the International Marketing Council of South Africa (which is charged with the "Brand South Africa" project), the site has a wealth of information aimed at potential visitors and investors, as well as at locals.
Whether you are looking for a street map of Mandini, a guide to exporting, health tips for tourists, lists of government contacts, articles on BEE and the last budget (under "fiscal policies"), or links to the websites of all the main political parties, this is the site to surf to.
Note: Copyright in this publication and its contents vests in LawDotNews(law.news)
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