Government’s administrative decisions

To safeguard against administrative decisions going wrong, the Promotion of Administrative Justice Act of 2000 (PAJA) gives individuals and legal entities the right to fair, lawful and reasonable administrative action. Furthermore, it gives the important right to obtain reasons for administrative actions.

Administrative action?

Applications for an ID or passport or permit, for example, involve administrative action.

Government departments, the police, and parastatals such as ESKOM all take administrative decisions. PAJA applies when a decision made by an arm of government has an effect on someone’s rights.

What does PAJA do?

PAJA requires that a fair procedure is followed when administrative decisions are taken, and gives the important right to obtain reasons for decisions. Persons affected by decisions that go against them, must also be informed of any internal appeals available to them within the government department or body concerned. As a last resort the person affected can approach a court to review the decision.

The following are grounds for review:

  1. There was no good reason (rational basis) for the decision.
  2. The decision-maker was not authorised by legislation to act or take the decision.
  3. The person who took the decision or action applied the law incorrectly.
  4. The person who took the action did not apply his/her mind to the issue.

What can you do?

If a decision goes against you and you believe there are grounds for getting it set aside, you can request that the particular department provide reasons for the decision. The request should be submitted in writing and within 90 days of the decision or action. If you don’t agree with the reasons, you can request an internal appeal or review. This step must be taken before you can approach a court for review. Government departments will usually have their own internal review or appeal process, which they should inform you about. If you’re still not happy, you can consider an application to court for review. Going to court is expensive, so obtain legal advice on all the available options.

Reference:

Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) Department of Justice and Constitutional Development. Accessed: http://www.justice.gov.za/paja. 09/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Let your child study law

On 1 August 2013 PPS released the latest results of the South African Legal Services Survey. Of the legal professionals, including 423 attorneys, who participated in the survey, only 52% had confidence in the efficiency of the court and judicial administrative system.

Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, loss of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? Because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. For the law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. But the low entry-level requirements of the LL.B degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. Because truth is that the legal profession actually make a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blond, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room. Their office space is cluttered with towers of files.

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome of the situation for each of your clients. For not all clients have unlimited resources and you have to work within the constraints of their financial ability. And mostly you do not charge fees for all of the effort and time spent.

But the one thing that each branch of the legal profession has in common is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of the sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction – because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same. And while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

And that is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Shareholder claim for diminution of share value

Retha Oosthuizen

Does a shareholder in a company have a claim against a director or third party who committed a wrong against the company and so caused a diminution of the value of shares in the company? This was in issue in Itzikowitz v Absa Bank Ltd (20729/2014) [2016] ZASCA 43 (31 March 2016).

The scenario was the following: Mr Gary Itzikowitz is the sole shareholder of Compass Projects (Pty) Ltd (Compass). Compass, in turn, holds 17.29 per cent of the shares in a public company, Quantum Properties Group Limited (QPG). QPG held 100 per cent of the shares in A Million UP (Pty) Ltd (AMU), a property development company. Compass had a loan account in AMU from which it is owed R5 292 442. Absa was the banker to AMU and QPG and had extended loan facilities to AMU. After June 2010, Absa increased the loan facilities to AMU to over R500 million. Two years later AMU was hopelessly insolvent and Absa obtained a final court order for its liquidation in August 2012. Absa subsequently sued Mr Itzikowitz for R20 million, on the basis of a suretyship signed by him in 2008, binding himself ‘as a surety and co-principal debtor jointly and severally’ together with AMU in favour of Absa. The suretyship was limited to a maximum of R20 million plus accrued interest and costs.

A diagram of the scenario:

Cluver_Marketing

In response to Absa’s claim Mr Itzikowitz filed two counterclaims. He alleged that AMU’s demise was a result of intentional, reckless or negligent conduct by Absa in: (a) advancing funds to AMU when there was no reasonable prospect of the monies being repaid; (b) colluding with directors of QPG and AMU, and the auditors of AMU, to ensure that they advanced Absa’s wishes to the detriment of AMU; (c) colluding with AMU’s joint venture partner, Protea Hotels, to secure benefits for it at the expense of AMU; (d) ignoring the appellant’s written request in September 2011 to cease advancing funds to AMU; and (e) setting aside the attempted business rescue and then applying for AMU’s winding-up.

As a result of AMU being wound up, so the allegations go: (a) the value of QPG’s shareholding in AMU had been reduced to nil; (b) trading in QPG shares was suspended by the Johannesburg Stock Exchange; (c) the value of Compass’ shareholding in QPG was reduced to nil; and (d) Compass’ loan amount in AMU amounting to R5 292 442 was rendered irrecoverable. By way of his counterclaims the appellant seeks to recover from Absa the amount of the reduction in value of his shareholding in Compass, alleged to be R50 002 338.

Mr Itzikowitz’s counterclaim A was for pure economic loss and is founded in delict. The key allegations on which he relied were that: (a) Absa knew that he was a surety, who had a financial interest as an indirect shareholder in QPG and AMU; and (b) Absa knew (or more accurately foresaw) that a winding-up of AMU would materially impact upon the value of the QPG shares in AMU, the value of Compass shares in QPG and, correspondingly, the value of his shares in Compass. The ‘legal duty’ for his asserted delictual claim was framed thus:

‘In the premises the plaintiff [Absa] owed the defendant [Mr Itzikowitz] a legal duty to conduct itself towards AMU as a reasonable banker and not to take any decisions or to engage in any business conduct which could adversely affect the value of shares in AMU or the value of any loan account in AMU in material respects. The said legal duty arose directly as a result of the banker-customer relationship between the plaintiff and QPG and between the plaintiff and AMU.’

Mr Itzikowitz’s counterclaim B, which was pleaded in the alternative, was based on the same allegations of misconduct by Absa as in counterclaim A.  However, here he relied on the provisions of s 218(2)[1] read with s 22(1)[2] of the Companies Act 71 of 2008. He alleged that the devaluation of his shares in Compass qualified as ‘any loss or damage’ contemplated by s 218(2) and that Absa’s conduct constitutes a breach of s 22(1). This, so the allegation went, permited him to recover the devaluation directly from Absa. The judgement did not deal with counterclaim B and for purposes of this summary we will therefore only focus on counterclaim A.

Counterclaim a: Pure economic loss

In contrast to cases of physical harm, conduct causing pure economic loss is not prima facie wrongful.[3] The onus was therefore on Mr Itzikowitz’s to show that his right/s and/or legally recognised interest/s were infringed by ABSA.

As it was recently put by the Constitutional Court in Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng [2014] ZACC 28; 2015 (1) SA 1 (CC) para  43: ‘Until we are satisfied the department wronged Country Cloud, its claim does not get off the ground’.[4]

In its defence ABSA contended that damage, if any, could only have been suffered by AMU and not be Mr Itzikowitz who is ‘a shareholder thrice removed from that company’.[5]

In considering the arguments the court referred to the established principle that a company has a legal personality separate of its shareholders. The court confirmed that:

  1. this concept is not merely a technicality;[6]
  2. the property of the company belongs to the company and not its shareholders, even if there is only one shareholder;[7]
  3. a shareholder does have a general right of participation in the company’s assets, but this right is deferred until the company is wound-up and will then also be subject to the creditor’s claims.[8]

The court held that the point of departure for this type of enquiry must be to determine in which of the three categories identified in Johnson v Gore Wood & Co (a firm)[9](“the Johnson Categories”) the claim falls. The categories are as follows:

  1. If the company suffers a loss caused by a breach of a duty owed to it only the company will be able to sue in respect of that loss. The shareholder will not be able to sue to make good a diminution in the value of its shareholding where it merely reflects the company’s loss (i.e. if the action against the responsible party would result in the company’s assets being replenished, the claim will lie with the company and not the shareholder).
  2. If the company suffers a loss but has no cause of action to sue, the shareholder may sue in respect of the loss but only if he has a cause of action to do so. This is the case even if the loss is a diminution in the value of the shareholding.
  3. If the company and the shareholder each suffer a loss caused by breach of duties independently owed to each party, each party will be able to sue for recovery of its loss. They will, however, not be able to claim in respect of any loss caused by the breach of a duty owed to the other party.

In short, the Company is therefore the only entity which can claim for the loss caused by a breach of duty owed to it. The shareholder will only be entitled to claim in the event of a breach of a duty owed to the shareholder, even if it amounts to a claim for loss of diminution of value in shareholding.

Conclusion:

The court ruled that Counterclaim A falls squarely within the ambit of type 1 of the Johnson Categories. It therefore ruled that Mr Itzikowitz is not entitled to sue to recover the diminution in value of his shares in the absence of a breach of a duty owed to him.

Statutory remedies:

In this context it should be noted that the Companies Act, 71 of 2008 also provides shareholders with certain statutory remedies. These include, inter alia, the sections relied on under counter claim B above, and also:

Section 163: Oppressive or prejudicial conduct

In terms of section 163 the court can be approached for relief against oppressive or prejudicial conduct as well as conduct which disregards the interests of the applicant unfairly. Such conduct need not necessarily be unlawful. It is important to keep in mind that this section does not abolish common law remedies (as is the case with section 165, referred to below).

This section can be relied on under circumstances where the action of the company or related person results in oppressive or unfairly prejudicial conduct or where the business of the company is carried on in a manner which is oppressive or prejudicial to, or unfairly disregards the interests of a shareholder. The exercise by a director or prescribed officer of a corporate power will also, in most instances, be considered an act of the Company.[10]

Section 165: Derivative action:

Section 165 provides shareholders with a derivative action. A derivative action can be described as follows:

Broadly stated, a derivative action (also referred to as the exception to the rule in Foss v Harbottle) arises where a shareholder brings a claim on behalf of the company, to recover for the company a loss which he alleges has been sustained at the hands of the individuals in control of the company. The benefits of the action accrue to the company and not the shareholder. To the extent that the benefits improve the balance sheet or prospects of the company, the reflective benefit may be realised in the value of his shares.”[11]

Section 165, in contrast to section 163, abolishes and replaces the common law derivative action. However, this relates only to wrongs committed against the company and will not limit the shareholder’s right to institute action in his own right should his interest be infringed.

In terms of section 165 any shareholder, director or registered trade union is entitled to serve a demand on the company to commence or continue legal proceedings, or take related steps, to protect the interests of the company. [12] The Company will then be granted 15 business days to apply to court to set aside the demand on the grounds that it is frivolous, vexatious or without merit.[13] The Act in section 165 (4) prescribes the procedure which the Company must follow in the event of the demand not being set aside.

The party who served the demand is then entitled to approach the court for leave to bring or continue the proceedings in the name of and on behalf of the company. The court will only grant leave under specific circumstances, including cases where the company did not adhere to the steps required in terms of section 165 (4) and only if the court is satisfied that the applicant is acting in good faith. The proposed proceedings involve the trial of a serious question of material consequence to the company, and it is in the best interests of the company.

[1] Section 218(2) reads: ‘Any person who contravenes any provision of this Act is liable to any other person for any loss or damage suffered by that person as a result of that contravention.’.

[2] Section 22(1) reads: ‘A company must not carry on its business recklessly, with gross negligence, with intend to defraud any person or for any fraudulent purpose.’.

[3] Steenkamp NO v Provincial Tender Board, Eastern Cape [2005] ZASCA 120; 2006 (3) SA 151 (SCA) para 1.

[4] See also Minister for Safety and Security v Scott & another [2014] ZASCA 84; 2014 (6) SA 1 (SCA).

[5] [9]

[6] Dadoo Ltd & others v Krugersdorp Municipal Council 1920 AD 530 at 550.

[7] The Shipping Corporation of India Ltd v Evdomon Corporation & another [1993] ZASCA 167; 1994 (1) SA 550 (A) at 566C-D.

[8] S v De Jager 1965 (2) SA 616 (A) at 625.

[9][2001] 1 All ER 481; [2002] 2 AC 1 (HL).

[10] Visser Sitrus (Pty) Ltd v GOede Hoop Sitrus (Pty 0Ltd and others 2014 (5) SA 179.

[11] Itzikowitz v Absa Bank Ltd (20729/2014) [2016] ZASCA 43 (31 March 2016) footnote 14.

[12] Section 165 (2).

[13] Section 165 (3).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Public nuisances: Legal rights in terms of legislation

Persons who commit disruptive acts of unacceptable behaviour in public places may be warned, arrested and subsequently prosecuted by the authorities. The offender shall be liable for a fine, imprisonment or both upon conviction. How is this enforcement of our rights achieved by an ordinary citizen?

A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience or welfare of a community.[1]

Legislation offers relief in this respect, in specific by-laws of local Municipalities. A by-law is a law that is passed by the Council of a municipality to regulate the affairs and the services it provides within its area of jurisdiction[2]. A municipality derives the powers to pass a by-law from the Constitution of the Republic of South Africa.

With regards to Public Nuisances one would look to By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007[3]. The main body of this by-law lists certain acts that are deemed prohibited behaviour and are therewith criminalised. Various acts including begging, using abusive or threatening language, being under the influence of drugs or alcohol and causing a disturbance by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound are listed therein.[4]

Should anyone and his conduct fall within this definition and perform any or multiple prohibited acts of public nuisance, the authorities are to be alerted immediately. The authorities have the power to instruct the offender to immediately cease the offending behaviour, failing which he will be guilty of an offence.

Section 23 states that any person who contravenes or fails to comply with any provision of this by-law or disobeys any instruction by the authorities enforcing this by-law, shall be guilty of an offence. This offender shall be liable to a fine or imprisonment for a period not exceeding six months, or to both a fine and such imprisonment.

It is therefore evident that by identifying certain acts of unacceptable, aggressive, threatening, abusive or obstructive behaviour of persons in public the offender may be ordered to immediately cease such offending conduct or be arrested for not complying with any order to do so.

Reference List:

  1. http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/
  1. http://legal-dictionary.thefreedictionary.com/Public Nuisance
  1. http://openbylaws.org.za/
  1. https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

[1]http://legal-dictionary.thefreedictionary.com/Public Nuisance

[2]https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

[3]http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/

[4]Section 2 By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Commencement of Business Rescue proceedings

Is your company experiencing financial strain? Are creditors breathing down your neck? Business Rescue proceedings may be a solution to your problems.

Business Rescue is a new approach that is governed by the Companies Act 71 of 2008 (“the new Companies Act”) with the aim of assisting companies which are experiencing financial strain and are unable to pay their creditors in the ordinary course of business. This article will look at what Business Rescue encompasses, as well as how Business Rescue proceedings are commenced.

Section 128(1) (b) of the Companies Act defines Business Rescue proceedings as proceedings to facilitate the rehabilitation of a company that is financially distressed by providing, inter alia, temporary supervision of a company under a Business Rescue practitioner.

The role of the Business Rescue practitioner (who must be appointed within 5 days after the company has been placed under Business Rescue) is to ensure that the company complies fully with the steps to be taken once Business Rescue proceedings have commenced. They must also ensure that everything reasonably possible is being done (including the drafting of a Business Rescue plan) to assist the company in getting out of its current state of financial strain and into a position where it will be able to pay its creditors in the ordinary course of business.

The new Companies Act stipulates that, in order to place a company under Business Rescue, a resolution must be taken by the Board of Directors and an application thereto must be made to the CIPC (Companies and Intellectual Property Commission). The Commissioner must then consider the application and approve or reject it. Alternatively, any interested or affected party may apply to the Court for a court order placing the company under Business Rescue.

A company that is under Business Rescue is protected from creditors in that no legal action or proceedings may be taken against a company that has commenced with Business Rescue proceedings.

It is imperative to note that a lack of full compliance with the requirements in respect of Business Rescue proceedings may render the Business Rescue proceedings null and void. This position was reiterated in the High Court case of Advanced Technologies & Engineering Company (Pty) Ltd v Aeronautique et Technologies Embarquees SAS (unreported CASE NO 72522/20110), and the Court further held that the new Companies Act does not provide for condonation of non-compliance with the requirements.

References:

  • Companies Act 71 of 2008
  • D Davis, W Geach, T Mongalo, D Butler, A Loubser, L Coetzee, D Burdette, 3rd Edition (2013) Commercial law: Companies and other Business Structures in South Africa.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Differences between public and private schools in South Africa

In terms of Section 5 (3) (a) of the South African Schools Act No 84 of 1996 no learner may be refused admission to a public school on the grounds that his or her parents is unable to pay or has not paid the school fees as determined by the Governing Body. However, this Act does not make provision for independent “private” schools with regard to fees.

Section 5 (3) (a) of the South African Schools Act No 84 of 1996 has incorporated Chapter 2 Section 29 (1) (a) of the Constitution of the Republic of South Africa 1996 in terms of which everyone has the right to basic education. Therefore no child can be sent home or refused to participate in certain activities or sports due to arrears school fees[1]. Public schools must provide for equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees.[2] This means that should a parent find themselves retrenched during the third term of school, they can apply for subsidiary for the tuition of the last term and their child / children can continue their education.

The South African Schools Act[3] does not make provision for independent “private” schools. Private schools are governed by the Private Schools Act No 104 of 1986, which does not make any mention of arrears school fees and whether or not children are still allowed their right to basic education if their parents find themselves in a financial struggle. The Private Schools Act focuses more on the regulations of a school itself and how to become a private school.

The problem relating to this is the fact that the children suffer. At the time of entering their children into a private school, the parents are financially stable. However, what happens if a parent suddenly find him/herself retrenched? Furthermore, the above problem is aggravated by the fact that private schools are struggling to obtain funds from the Government for subsidies. Race-based inequalities in subsidies to independent schools have been eliminated since 1994. Since then, subsidy levels have differed somewhat per province. But extreme pressure on the non-salary components of provincial education budgets, especially in 1997/98 and 1998/99, has resulted in a sharp decline in the per learner value of independent school subsidies, and considerable uncertainty as to the future trend of independent school funding by provincial education authorities.[4]

[1] South African Schools Act No 84, Section 41 (7)
[2] South African Schools Act No 84 of 1996, Section 39(2) (b)
[3] South African Schools Act No 84 of 1996
[4] South African Schools Act No 84 of 1996: Rules and Regulations

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Openbare oorlaste: Wetlike regte in terme van wetgewing

Persone wat ontwrigtende dade van onaanvaarbare gedrag in openbare plekke pleeg, mag gewaarsku en daarna deur die owerhede in hegtenis geneem word. Die oortreder sal aanspreeklik wees vir ‘n boete, gevangenisstraf of beide by skuldigbevinding. Hoe word hierdie toepassing van ons regte behaal deur ‘n gewone burger?

‘n Openbare oorlas is ‘n kriminele misdaad; dit is ‘n daad of versuim wat belemmer, skade berokken, of die regte van die gemeenskap verontrief. Die term openbare oorlas dek ‘n wye verskeidenheid van geringe misdade wat die gesondheid, morele waardes, veiligheid, gerief, gemak of welsyn van ‘n gemeenskap bedreig.

Wetgewing bied verligting in hierdie verband, spesifiek in die verordeninge van die plaaslike munisipaliteite. ‘n Verordening is ‘n wet wat deur die Raad van ‘n munisipaliteit aangeneem word om die sake en die dienste wat dit bied binne sy regsgebied te reguleer. ‘n Munisipaliteit verkry die magte om ‘n verordening goed te keur van die Grondwet van die Republiek van Suid-Afrika.

Met betrekking tot openbare oorlaste sou ‘n mens kyk na Verordening op Strate, Openbare Plekke en die Voorkoming van Stoornisse, 2007. Die grootste deel van hierdie verordening lys sekere handelinge wat as verbode gedrag geag word en daarmee gekriminaliseer word. Verskillende aksies, insluitend bedel, die gebruik van beledigende of dreigende taal, om onder die invloed van dwelms of alkohol te wees en ‘n versteuring te veroorsaak deur te skreeu, gil of enige ander harde en aanhoudende geraas of klank, insluitend versterkte geraas en klank te maak, word daarin gelys.

Indien enigiemand se gedrag binne hierdie definisie val en hy enige of verskeie verbode handelinge van openbare oorlas uitvoer, moet die owerhede onmiddellik in kennis gestel word. Die owerhede het die mag om die oortreder te gelas om die gewraakte gedrag onmiddellik te staak, by versuim waarvan hy aan ‘n misdryf skuldig sal wees.

Artikel 23 bepaal dat enige persoon wat oortree of versuim om te voldoen aan ‘n bepaling van hierdie verordening of versuim om enige instruksie deur die owerhede wat hierdie verordening afdwing, te gehoorsaam, aan ‘n misdryf skuldig sal wees. Die oortreder sal aanspreeklik wees vir ‘n boete of gevangenisstraf vir ‘n tydperk van hoogstens ses maande, of vir beide ‘n boete en sodanige gevangenisstraf.

Dit is dus voor die hand liggend dat deur die identifisering van sekere handelinge van onaanvaarbare, aggressiewe, dreigende, beledigende of obstruktiewe gedrag van persone in die openbaar, die oortreder gelas kan word om onmiddellik sodanige gewraakte optrede te staak of in hegtenis geneem te word vir die nie-nakoming van enige opdrag om die optrede te staak.

Verwysingslys:

  1. http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/
  1. http://legal-dictionary.thefreedictionary.com/Public Nuisance
  1. http://openbylaws.org.za/
  1. https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)

Wanneer verjaar ‘n eis?

Die kwessie rakende die regsaard van ‘n verdedigende eis en of dit aanleiding gee tot skuld wat onderworpe is aan die drie jaar uitwissende verjaringstermyn is verskillend hanteer deur verskillende afdelings van die Hoërhof. Op 28 Mei 2015 het die Hooggeregshof tot ‘n finale besluit gekom in Absa Bank v Keet[1] rakende of eise onder die actio rei vindicatio na drie jaar verjaar al dan nie.

Een van die eerste vrae wat u prokureur u sal vra wanneer u met hom konsulteer, is wanneer die skuldoorsaak plaasgevind het, sodat hulle kan vasstel of u eis verjaar het. Indien u eis verjaar het, beteken dit dat daar geen wetlike regstellings meer tot u beskikking is nie. Eise voortspruitend uit skuld verjaar na drie jaar en die reëls van verjaring word in die Verjaringswet van 1969 uiteengesit.

Daar is een spesifieke eis waar die toepassing van die drie jaar verjaringstydperk onseker was en dit was in verband met eise onder die actio rei vindicatio. Dit is ‘n regsaksie waarby die eiser eis dat die verweerder ‘n item wat aan die eiser behoort, teruggee, en dit mag slegs gebruik word indien die eiser die item besit en die verweerder die eiser se besit daarvan belemmer.

‘n Rei vindicatio aksie word dikwels gebruik in dispute rakende paaiementverkope, waar eienaarskap slegs bepaal word deur die betaling van die laaste paaiement of waar paaiemente nie op tyd betaal word nie. Dit gaan meestal hand aan hand met ‘n eis vir kansellasie. Met ander woorde, die verkoper kanselleer die koopooreenkoms en eis teruggawe van die item wat verkoop is.

In die geval van Absa Bank v Keet[2] het die verkoper van ‘n motorvoertuig gepoog om die koopooreenkoms te kanselleer en die teruggawe van die verkoopte voertuig te eis. Die koper van die voertuig het hierop gereageer met ‘n spesiale pleitrede dat die eis vir teruggawe van die voertuig reeds verjaar het.

Die rede vir sy aanspraak dat die eis reeds verjaar het, was dat die ooreenkoms waarop die verkoper gedagvaar het tot ‘n einde sou kom op die datum waarop hy aangevoer het dat die uitstaande bedrag verskuldig en betaalbaar geword het, en dit was meer as drie jaar sedert daardie bedrag verskuldig geword het.

In die geval van Staegemann v Langenhoven[3] is daar beslis dat ‘n verdedigende eis nie na drie jaar verjaar nie. Die Hoërhof in die Keet geval het beslis dat hierdie saak se beslissing foutief was, want indien Staegemann korrek was, “kon die Bank sy aanspraak op die trekker vir nog ‘n dekade en selfs langer terughou, om daarna teruggawe van die voertuig te eis sodat dit sy skadevergoeding kon bereken”.

In die Keet geval moes die Hooggeregshof besluit of die Hoërhof korrek was in sy mening dat die verkoper se eis om teruggawe van sy besitting ‘n “skuld” is, wat vir die doeleindes van die Verjaringswet na drie jaar verjaar.

Die Hooggeregshof het ‘n belangrike onderskeid tussen uitwissende en verkrygende verjaring gemaak ten einde tot ‘n finale besluit te kom. Uitwissende verjaring handel oor ‘n krediteur se reg van optrede teen ‘n skuldenaar, wat ‘n persoonlike reg is. Aan die ander kant handel verkrygende verjaring oor die verkryging van ware regte tot eiendom (in terme van die Verjaringswet kan ‘n persoon eienaarskap van eiendom verkry na 30 jaar van ononderbroke besit). Ware regte is hoofsaaklik gemoeid met die verhouding tussen ‘n persoon en ‘n item, terwyl persoonlike regte gemoeid is met die verhouding tussen twee persone.

Die persoon wat geregtig is op ‘n ware reg oor ‘n item kan, deur middel van verdedigende aksie, daardie item van enige individu eis wat met sy regte inmeng. Sodanige reg is die reg tot eienaarskap. Indien die reg egter nie absoluut is nie, maar slegs relatief tot die item, sodat dit slegs afdwingbaar is teen ‘n gedetermineerde individu of groep individue, is dit ‘n persoonlike reg.[4]

Die Hooggeregshof is daarom van mening dat, om ‘n verdedigende aksie as ‘n “skuld” te oorweeg wat na drie jaar verjaar, teenstrydig is met die skema van die Wet en dat dit die waarde van die onderskeid wat die Verjaringswet tref tussen uitwissende verjaring en verkrygende verjaring ondermyn. Met ander woorde, wat die krediteur verloor as gevolg van die uitvoer van uitwissende verjaring is sy reg tot optrede teen die skuldenaar, wat ‘n persoonlike reg is. Die krediteur verloor nie ‘n reg tot ‘n item nie.

Die Hooggeregshof het dit derhalwe duidelik gemaak dat om die verdedigende aksie gelyk te stel met ‘n “skuld”, dit die onopsetlike en absurde gevolg het dat die skuldenaar, deur middel van uitwissende verjaring, eienaarskap van die krediteur se eiendom verkry na drie jaar in plaas van dertig jaar. Die verdedigende aksie verjaar dus nie na drie jaar nie.

[1] (817/13) [2015] ZASCA 81 (28 Mei 2015)
[2] (817/13) [2015] ZASCA 81 (28 Mei 2015)
[3] Staegemann v Langenhoven & ander 2011 (5) SA 648 (WCC).
[4] Wessels Law of Contract in South Africa 2de uitgawe vol 1 p 3-4.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)