Yearly Archives: 2014

Sectional Title Schemes: Liability for structural repairs to the common property

Owners of sectional title units are often confronted with the question of whether they have recourse against the body corporate for defects to the foundations of the buildings in the scheme. Problems with the foundations often manifest in the ground floor concrete slab, causing damage to units on ground floor level.

If the damage had been caused by subsidence or landslide, the insurance cover issued to the body corporate should solve the problem. However, if the damages are as a result of a design fault or poor workmanship when the buildings were constructed, a claim will probably be repudiated as not being events covered by the insurance... Read More

Labour Law: Resignations and the parties’ contractual obligations

Many employers often find themselves in a predicament when employees resign without adhering to the notice periods stipulated in the contract of employment. In order to address the recourse available to employers, it is important to first look at what legislation prescribes for notice periods.

1. Notice periods

A reasonable notice period that either party in an employment relationship needs to abide by is derived from common law, however section 37 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) has specifically developed the common law and makes specific provision for notice periods... Read More

Shipping Law: The significance of underwater cultural heritage and conflicting legal interests

During April 1998, excavations for the construction on an office building near the San Rossore train station in the classical port of Pisa revealed nine Roman ships and confirmation that the harbour was one of the greatest ancient Mediterranean ports. The discovery of the vessels, which include a warship, together with their ancient cargo and remains of a Roman soldier and his dog, will allow marine archeologists to extend their knowledge of Roman shipbuilding techniques and of classic trade. The cost of excavation and the restoration process is estimated at $6 million... Read More

Sectional Title Schemes: Deviations from section 25 plans finally settled

Deviation from the section 25(2)(a) and (b) plans when exercising a real right of extension has been soaked in debate since their introduction as a potential “plot-and-plan” option in sectional title developments. Alan West analysed the recent unreported case of Hartenbos Woonwapark CC v Registrar of Deeds and others and argues that the issue has finally been put to rest.

In the initial case of Dolphin Whisper Trading 10 (PTY) LTD v The Registrar of Deeds and another (20645/08) [2009][ZAWCHC] the Court found that if there is not sufficient evidence of changed circumstances, the real right of extension has to be exercised strictly in accordance with the section 25(2)(a) and (b) plans... Read More

Labournet: The hidden recorder in labour matters

Labournet examines the legal consequences of the use of hidden recorders in labour proceedings and found that with ever changing and advancing technological developments that have been made readily available to the public, employers are increasingly confronted with secret audio recordings being submitted as evidence. Technology has made it easy to capture audio recordings with small and easily concealable devices, an iPod or smartphone can record lengthy discussions without detection. This trend of behaviour can be expected given South Africa’s current socio-economic climate, which has heightened the importance of job security for many South Africans... Read More

Law of Succession: Johannes Steyn Botha N.O. v Master of the High Court and Two Others: Acceptance of a codicil not conforming to the Wills Act

Section 2 (1) (b) (i) (ii) and (iii) of the Wills Act 7 OF 1932 stipulates that no amendment made in a will executed shall be valid unless: 1. The amendment is identified by the signature of the testator in the presence of two or more competent witnesses present at the same time; 2. The amendment is further identified by the signature of such witnesses made in the presence of the testator and of each other.

In the unreported judgment of Johannes Steyn Botha N.O... Read More

Land Use Planning Law: A breakdown of demolition orders and encroachments: the latest judgments

In the recent Supreme Court of Appeal case Lester v Ndlambe Municipality and Another the court found that Section 21 of the National Building Regulations and Building Standards Act 103 of 1977 empowers a magistrate, on the application of any local authority or the Minister, to make an order authorising the municipality to demolish a building if that court is satisfied that the erection of the building does not comply with the provisions of the Act or any approval or authorisation granted thereunder... Read More

Property Law & Conveyancing: Municipalities’ rates clearance demands reigned in

In the recent Supreme Court of Appeal case Nelson Mandela Bay Municipality v Amber Mountain Investments the court dismissed an appeal by the Municipality, against a judgment of the Eastern Cape Local Division of the High Court, Port Elizabeth that the municipality is only entitled to demand payment of advance rates to the date of transfer of a property and not up to the end of a municipality’s financial year.

The respondent applied for a rates clearance certificate from the local municipality in order to transfer a property which it had recently sold during February of that year... Read More

Property Law and Contract: Contractual Unfairness and the Constitution

In the recent as yet unreported case of Bondev Holdings Midrand (Pty) vs Mulatedzi Alton Madzhie and others delivered by Acting Judge CR Jansen on 19 December 2016  in the Gauteng High Court, important contractual issues in a constitutional perspective were addressed in an insightful and ground-breaking judgement.

The applicant, a property developer, sold a vacant residential plot to the first respondent in January 2012. The first respondent paid the purchase price from loan finance raised, but failed to commence with construction of a dwelling on the property as required in terms of the deed of sale... Read More

Estate Agents: No Fidelity Fund Certificate, No Commission?

Section 34A of the Estate Agency Affairs Act 112 of 1976 requires that an estate agent must have been issued with a valid Fidelity Fund Certificate before he or she will be entitled to remuneration or other payment arising from the performance of any duties of an estate agent.

In the recent High Court judgment of Crous International (Pty) Ltd v Printing Industries Federation of South Africa an estate agent claimed commission from his principal following the successful sale of its immovable property... Read More

Ethics in action in the Legal Profession

“We have to link ethics to justice. If there is no justice in the world, nothing good will come from it.” Mr. Krish Govender, Chairperson of the Law Societies of South Africa (Ethics Committee).

1.   Ethics: Broadly defined

Ethics consists of knowing what we ought to do, and ethical decision-making consists of actually doing what we know we ought to do.

No person is born ethical; rather, just as there are stages of growth in physical and emotional development, so too are similar stages present when it comes to ethics and ethical decision-making... Read More

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