Yearly Archives: 2014

Historic Legal Practice Act signals the start of a new dispensation for the legal profession

The Law Society of South Africa (LSSA) welcomed the promulgation of the Legal Practice Act 28 of 2014, gazetted on 22 September 2014 with the following statement:

 “This is a historic event for the legal profession as it signals the formal start to a new dispensation, which we believe will usher in a transparent, transformed, public-centred and responsive profession – changes which the attorneys’ profession has long supported.”

The press release  adds further: “The LSSA has cooperated fully in the long process that has led to the Legal Practice Act and we commit ourselves to cooperating actively with all the relevant stakeholders in the transitional phase that will come into effect once the implementation date for Chapter 10 of the Act dealing with the National Forum for the Legal Profession, is promulgated... Read More

Case law: ABSA Bank Ltd v McCreath: protecting a party while under a “justifiable misapprehension” caused by another who requires such signature

The general rule of our law is that in signing a document, a person is taken to be bound by the ordinary meaning and effect of the words which appear over his signature.

There are exceptions, however, to protect someone signing under a justifiable misapprehension, caused by the other party requiring such signature, as to the effect of the document.

In this case the respondent and signatory of the documents argued that he was made to believe he was signing mere “standard terms and conditions” and was not advised the documents constituted a suretyship... Read More

Case law: Buffelsdrift Game Reserve Owners Association v Holkom & Others: the keeping of pets and (non)enforcement of HOA rules

The keeping of pets is a frequent bone of contention in estates managed by home owners associations. So too are complaints by owners regarding non-enforcement of the applicable rules by managing bodies.

The facts of the dispute were as follows:

The Buffelsdrift Game Reserve is a private property development.  A Home Owners Association (“HOA”) was established and all owners in the development were obliged to become members thereof. This was included as a condition in the sale agreement of the property... Read More

SCA issues landmark ruling that email negotiations and typed email signatures now binding

Our Supreme Court of Appeal ruled on 21 November 2014 that oral negotiations between parties that have been reduced to writing in the form of emails constitute an agreement to cancel their written agreements.

The court went further and found that typewritten names of the parties at the foot of emails constitute ‘data’ that is logically associated with the data in the body of the emails, as envisaged in the definition of an ‘electronic signature’.

Although these signatures should not be confused with an advanced electronic signature, they satisfy the requirement of a signature and have the effect of authenticating the information contained in the emails... Read More

Authentication of documents for use inside and outside of South Africa

Ever had to sign or legalise documents within South Africa for use abroad or vice versa? If you have, then you have probably experienced the frustration of being told that the documents have been validly  executed, but not properly authenticated and therefore not suitable for use in a deeds office or other formal purpose. Ms. Allison Schoeman (Strauss Daly Umhlanga branch) compiled this practical guide to ensure that your documents are in order, which can be downloaded here... Read More

Case law: Broadcasting Complaints Commission of South Africa / case number 30/2014

On Sunday 10 August 2014 on the SABC SAFM programme, ‘Media at SAFM’ a caller by the name of ‘Sig from Randburg’ called into this programme between 9h00 and 9h30. Amongst other things he referred on air to the Cabinet (the Executive Arm of the State) as an “entirely corrupt Cabinet”. The presenter did not correct the statement. A complaint was received from a Cabinet Minister arguing that the statement was defamatory and that the presenter should have asked the caller either to prove the statement or to withdraw it... Read More

Case Law: The MEC for Transport for KZN vs A S Loxton

Strauss Daly successfully appealed on behalf of the MEC for Transport for KZN, against a High Court judgment relating to alleged negligence on the its department’s part by failing to adequately warn motorists of obstructions on a stretch of road near Umkomaas.  The Court found that the department took sufficient measures in the circumstances and could not be expected to guard against foolhardy recklessness, as was displayed by the respondent.  The judgment was regarded as reportable by the judges. Read the full law report here... Read More

Equality, race and equity in the workplace: the Constitutional Court speaks

After a 9 year battle, the Constitutional Court handed down the final say in the matter of the South African Police Service (SAPS) and Solidarity (a trade union) on behalf of Renate Barnard on 2 September 2014.

At the heart of the matter is the issue of equality, race and equity in the workplace.

Barnard had applied for the same post within SAPS on three occasions. On all three occasions she was the highest scoring candidate, however her appointment was always refused by the National Police Commissioner, who was the ultimate decision maker... Read More

Trading with medicine and medical devices

It is understandable that due to the nature of medicine and medical devices that the trading of these products requires a well rounded regulatory framework.

 The Medicines and Related Substances Act 101 of 1965 regulates and controls amongst other things the importation of medicine and medical devices in South Africa. In terms of South African law all medical related products available to the South African public must be registered with the Medicine Control Council to ensure the safety, efficacy and quality of medicines and related products... Read More

POPI: How it affects you

The Protection of Personal Information Act (the ‘POPI Act’) has a significant impact on the way in which organisations or entities collect, store, process and utilise information to, from and between customers, clients and employees.

The POPI Act promotes the protection of personal information processed by a public and private body[1]. It aims to introduce certain information on protection principles to establish minimum requirements for the processing of personal information.

The POPI Act should be interpreted in a way that does not prevent a public or private body from exercising or performing its powers, functions and duties related to processing personal information... Read More

Madiba Day 2014: Strauss Daly contribute their share

Strauss Daly’s Cape Town branch contributed their share to commemorate and celebrate South Africa’s greatest icon.

They joined the “Bree Street Takeover” by partnering with the Community Chest on 18 July 2014 and brought along blankets and non-perishable food items, creating a blanket chain all the way down the street for 67 seconds.

Read the Community Chest acknowledgment to the team and see the photographs of the Strauss Daly team’s participation in the donation project... Read More

Rouwkoop clauses: not always what one expects it to be

In the recent decision of Royal Anthem Investments 129 (Pty) Ltd v Yuen Fan Lau and Shun Cheng Liang (941/2012 [2014] ZASCA 19 (26 March 2014) the court interpreted a rouwkoop clause in a deed of sale to mean that the words “to keep” refers to an amount received and held by the seller and does not include the deposit paid to the conveyancer.

The judgment dealt with the sale of an immovable property where the purchaser paid a deposit and transfer duty to the conveyancing attorney... Read More

Foreign companies: mortgage bonds and property ownership

Section 1 of the new Companies Act 71 of 2006, which came into operation on 1 May 2012, defines an “external company” as “a foreign company that is carrying on business, or non-profit activities, as the case may be, within the Republic, subject to section 23 (2).”

Section 23(2) of the Act goes further to state that:

“For the purposes of subsection (1), and the definition of “external company” as set out in section 1, a foreign company must be regarded as “conducting business, or non-profit activities, as the case may be, within the Republic” if that foreign company— (a) is a party to one or more employment contracts within the Republic; or (b) subject to subsection (2A), is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic.”

If a company meets the requirements set out above in that it is regarded as an external company in terms of the Act, it is required, within 20 business days after it first begins to conduct business, or non-profit activities, as the case may be, within the Republic, to register with the Companies and Intellectual Property Commission (CIPC)... Read More

Value Added Tax: Temporary relief for property developers to expire 1 January 2015

During 2012 SARS granted temporary relief to property developers in terms of section 18B of the Value Added Tax Act to enable developers to let unsold residential units for a period of 36 months without incurring a VAT liability.

This relief only applied to developers who intended to sell the properties at a later stage. It was intended to assist those who were unable to sell the properties in adverse economic conditions and were forced to lease the properties to cover costs... Read More

City of Cape Town issues fines totalling R722 650 for building regulations- and land use planning transgressions

In a recent media release the City of Cape Town stated that it is making progress with convictions related to illegal building work and land use transgressions. According to the briefing on their website, a total of 471 court cases were concluded, which resulted in fines worth R722 650 being issued to individuals from January to December 2013.

They are calling on property owners, neighbours and developers to share in the responsibility of ensuring that small and large developments are compliant with the necessary regulations to avoid penalties... Read More

International news: lender Wonga sent fake law firms’ letters threatening its customers

England and Wales Law Society said reports that payday lender Wonga issued letters from fake law firms were alarming. They urged the public to verify credentials when approached by what appear to be professionals. Read the full article here.. Read More

The “one-pager” and the “cut-and-paste” demon

Contracting parties often misunderstand comprehensive- and well drafted contracts to be expensive and unnecessary, believing that the notorious “one-pager” is as effective.

Legal practitioners are regularly confronted with such requests, or are mandated to deal with contracts previously properly drafted by a lawyer, but which have subsequently been mutated by the “cut-and-paste” demon into a document brimming with now irrelevant legalize and most of the essentialia of the contract missing. In short: litigation paradise!

The main problems of these contracts are that they do not properly reflect the true intention of the parties and material terms of the contract are inevitably omitted... Read More

TimesLive: “Cele to fight JZ firing despite new post”

Andile Khoza, senior director at Strauss Daly, told TimesLive recently that Bheki Cele’s appointment is a completely separate matter from President Zuma’s decision to dismiss him as national police commissioner. Cele was appointed on 1 June 2014 as the deputy minister of agriculture, forestry and fisheries.

Read the full article here... Read More

Credit Amnesty: the New Regulations

There are 21 million credit active consumers in South Africa, of which 11 million are blacklisted at a credit bureau. As from the 1st of April 2014 an amendment to the National Credit Act 2005 will provide relief to consumers who are blacklisted and who are adversely affected by such blacklisting who have paid up the debt.

It is clear that the amendments to the National Credit Act 2005 in respect of credit amnesty have caused confusion, with some consumers believing a credit amnesty means you do not have to repay your debt... Read More

“Schemes of business” and the abuse of the Insolvency Act to stop legitimate sales in execution from proceeding

Scenario:

A property owner and mortgagor encounters financial difficulties and defaults on his monthly bond payments. The bank forecloses on the bond, the mortgagor (now a “debtor”) becomes overwhelmed and ignores the legal process instituted against him while he tries his best to overcome his financial woes.

After a few months, having received no further notices and under the impression that the bank has “given up”, the debtor receives a visit from the sheriff informing him that his house will be sold in execution... Read More

Residential Leases: Cancellation Penalties and the CPA

The introduction of the Consumer Protection Act (“CPA”) not only affected several of our established common law principles (caveat subscriptor; freedom to contract, the passing of the risk rule; the parol evidence rule and voetstoots clauses), but it is also responsible for a new thinking on residential leases.

One such important aspect is the restriction of the landlord’s remedies upon a tenant’s early termination of a residential lease concluded between natural persons. Previously an attempted early termination of a lease was regarded as a repudiation of the contract by the tenant, resulting in the landlord’s right to accept the repudiation, cancel the lease and claim damages from the tenant... Read More

Anton Pillar Type Orders: The Civil Law Search Warrant

As is the case in terms of our criminal law; which makes provision for the obtaining of a search warrant by the investigative authorities in order that its members be permitted to search premises which are suspected to be involved in or harbour evidence in relation to an alleged crime, our civil law also provides private litigants with a similar type of procedure or remedy.

This procedure is known an Anton Pillay type order (“the order”) which a litigant (“the applicant”) applies for on an ex-parte basis, i.e... Read More

Fraud, Corruption, Theft And Suspicious Transactions – Your Obligation To Report

It is likely at one stage in the running and management of a business, it will experience and/or be affected by the above commercial crimes. Our law does provide businesses and private individuals with various civil and criminal remedies. However it also, in certain instances, places a legal duty to report certain crimes as is more fully referred to below.

In South African law fraud is commonly defined as the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another... Read More

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