Monthly Archives: November 2014

Trustees of body corporate not allowed to disconnect electricity or water supply

A1_BThe default of levy payments is a frequent problem for the trustees of body corporates as well as the managing agent. It is the way in which the defaulting owner is treated and the outstanding debt collected, that will make the difference between a functioning, financially stable sectional title scheme or an impending disaster zone.  

In these testing economic times, monthly levy payments are sometimes considered by owners of sectional title sections to be an optional expense in making ends meet on a tight budget.  Once an owner has got away with defaulting on one payment, habitual default becomes easy, and more so if the trustees and management agent are slow to react to the failure to pay. The problem is worsened by the fact that the monthly levy is carefully calculated prior to the annual general meeting to be the minimum amount possible, in an attempt to accommodate the owners. However, these small monthly levies could easily accrue over a few months to a significant amount, aggravated by interest and reflected as a substantial outstanding debt.

These non-payers place severe financial restraints on the cash flow of a body corporate which is largely dependent on the timeous monthly payments by all its members to fulfil its monthly obligations to, inter alia, municipalities regarding water and common area electricity usage, security, and general upkeep of the property. If the body corporate does not have large financial reserves on which it can rely in the event of default by its members, the impact of the default can be severe and can cause unnecessary hardship for other owners. There are known instances of special levies raised in order to assist the body corporate in its financial hardship.

Many trustees and managing agents, in order to recover outstanding amounts, revert to taking the law into their own hands by cutting off the water and electricity supply to such members’ sections or units. Some have even passed rules which allow for such actions. Justifications for these actions by trustees and management agents are abundant, but none of these are legally sound or will stand in court.

By withholding the water and/or electricity supply to the section, whether or not it is allowed for in the rules, the trustees and management agent not only disregard the owner’s constitutional rights to access to water as well as the provisions of the electricity act, but also specific stipulations of the Sectional Title Act, Act 95 of 1986 as amended (“the Act”) and confirmed in case law. Such trustees and managing agents expose themselves and the trustees in their personal capacity, to an application by the owner and/or the occupier, against the spoliation of such services, or access with a court order for immediate re-connection. The body corporate or management agent may not interfere with water and electricity services rendered to a section or unit. The penalty will be a cost order, if not granted on a punitive scale, red faces, and a lot to answer to at the next annual general meeting.

The Act clearly stipulates in Section 37(2) that trustees must approach by action any court, including the Magistrate’s court, for recovery of any and all contributions levied under the provision of Section 37(1), which include monthly levies, special levies, interest, and legal costs on attorney and client scale.

The trustees and managing agent have no choice herein. Prompt debt collection action taken against any owner immediately on default, will be the best defence. Therefore the trustees must ensure that the appointed management agent either has a proven track record or a detailed collection policy prior to appointment of such agent. We all know that the wheels of justice turn slowly, and that it can take months for the default judgement to be granted and the warrant issued. By delaying the collection process the outstanding levy account increases exponentially, together with the burden on paying owners.

Therefore, the trustees themselves should keep a watchful eye on monthly payments and ensure that defaulting owners are immediately contacted by the management agent and, if they persist in the default, handed over to competent attorneys for collection. The sooner, the better.  The old adage “absentee landlords gather no crops” is fitting, and trustees should ensure that the management agents attend to defaulters speedily and effectively in the interest of both their own property investment and that of the other owners in the sectional title scheme.

For further reading, see the judgement by Blieden J with Serobe AJ concurring in Queensgate Body Corporate vs MJV Claesen delivered on 26 November 1998 in the Witwatersrand Local Division, case number A3076/1998, and case law referred to therein.

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.

The position of same-sex marriages in South Africa

A2_BIn December 2005 South Africa became the fifth country in the world and the first country on the African continent to recognise the rights of same-sex couples.

The Constitutional Court case of Minister of Home Affairs vs Fourie is the ground-breaking decision which legalised homosexual marriages in South Africa. 

The legal question in the Minister of Home Affairs vs Fourie was twofold:

Firstly, the court had to decide whether the fact that no provision was made for same-sex marriages in any statute, amounted to the denial of equal protection of the law and unfair discrimination by the state against homosexuals on the basis of their sexual orientation. Secondly, if such unfair discrimination were to be found, the court had to decide on an appropriate remedy.

Judgement

In a unanimous decision the Constitutional Court declared that the common law definition of marriage, and section 30(1) of the Marriage Act, which excluded same-sex marriages, were inconsistent with sections 9(1) and 9(3) and section 10 of the Constitution that dealt with the right to equality and the right to human dignity respectively.

The Court highlighted that South Africa has a multitude of family formations and as such it was held to be inappropriate to enforce any one particular form as the only socially and legally acceptable one. The Court emphasised a constitutional need to acknowledge the long history in South Africa of the marginalisation and persecution of gays and lesbians. Further, the Court acknowledged the lack of a comprehensive legal regulation of the family law rights of gays and lesbians.

It was found that excluding same-sex marriage is an indication that homosexuals are to be considered “outsiders”. In the words of Judge Sachs, writing on behalf of the majority: “To penalise people for being who and what they are, is profoundly disrespectful of the human personality and violators of equality. Equality means equal concern and respect across difference.” In effect the Court acknowledged a “right to be different”. 

Religious arguments

Among the various arguments opposed to the issue at hand were inevitable contentions raised by religious institutions, which the Court respectfully heard. However, it was held that judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues that have caused deep divisions within religious bodies. In the open and democratic society contemplated by the South African Constitution there must be a mutually respectful co-existence between the secular and the sacred. Furthermore, it was held that the recognition of same-sex marriages would in no way force religious institutions to accept or perform such marriages within their chosen belief, nor would the recognition deprive any religion or heterosexual couple from marrying within the tenets of their beliefs.

Civil Union Act 17 of 2006

The final finding of the Court was that the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and the benefits, coupled with responsibilities it accords to heterosexual couples. Furthermore, section 30(1) of the Marriage Act was declared to be invalid to the extent that it gave effect to the exclusion of same-sex marriages. In order to remedy the situation parliament was given 12 months to cure the defect through the implementation of legislation.

Ultimate relief came in the form of the Civil Union Act 17 of 2006, which makes provision for same-sex marriages and operates alongside the Marriage Act, such that any individual in South Africa may now conclude a marriage either in its traditional form (under the Marriage Act) or in the form of a civil union (under the Civil Union Act). Civil partnerships (or unions) are entirely the same as marriages insofar as legal consequences are concerned but just differ in name.

Conclusion

One of the most important lessons to be learnt from this case is in this statement made by the Court: “At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.” 

It goes without saying that the enactment of the new Act changes the discriminatory background of common law in respect of same-sex relationships. The consequences of a civil union are now the same as in a marriage of a heterosexual couple. It must be noted that an unregistered same-sex relationship is not governed by the provisions of this Act, and that the law allows for churches to refuse to perform civil unions.

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.

Recent developments in the interpretation of agreements

A3_BOur Supreme Court of Appeal has recently given clarity and guidelines on the interpretation of contracts and legislation when it decided on the matter of Bothma-Batho Transport (Pty) Ltd v S Bothma & Seun Transport (Pty) Ltd. Without delving into the merits of the matter it would suffice to state that the parties entered into agreements, which resulted in arbitration proceedings and further litigation proceedings, both of which led to the concluding of settlement agreements. A dispute arose on the interpretation of the second agreement between the parties.

In delivering its judgement the Court cited the earlier approach adopted by our Courts and the application of the so-called “golden rule” of interpretation which is as follows:

The correct approach to be followed once the literal meaning of a word or phrase has been determined is to regard the following:

  1. The context in which such a word or phrase is used, having considered the contract as a whole, including the nature and the purpose of such an agreement.
  2. The background circumstances that existed when entering into the agreement (such as what the parties had in mind when entering into the agreement).
  3. If the language, on the face of it, is ambiguous, the court would consider surrounding circumstances such as previous negotiations and correspondence, and conduct of parties that would be indicative of how they interpreted the agreement, save for direct evidence of their own intentions.

The Court found the above not to be consistent with the new approach to the interpretation now adopted in South Africa. It found that although the starting point to the interpretation of agreements remained the words or phrases used, the process of interpretation did not stop at a “perceived literal meaning” of the words or phrases. These words or phrases must be considered in light of the entire “admissible context”, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is “essentially one unitary process”.

It is suggested that practitioners also consider the matter of Natal Joint Municipal Fund v Endumeni Municipality 2012 (4) SA593 (SCA), which matter was referred to in the Bothma-Batho case. The Court found that the following should be taken into account in the interpretation of agreements:

  1. The language used, in light of the ordinary rules of grammar and syntax.
  2. The context in which the word or phrase is found.
  3. The purpose to which the provision is directed.
  4. The knowledge of the parties.
  5. Where more than one meaning is possible it must be considered against the background of the above factors.
  6. Whether the process of interpretation is an objective one.
  7. A sensible meaning is to be preferred to one that would lead to absurdity.

Lastly the Court warned that judges must guard against the temptation to substitute reasonable and sensible words for the words that are actually used.

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.

Provocation as defence in criminal law

A4_BCan an accused in a criminal trial use the defence that he was so infuriated that he did not know what he was doing?

In S v Eadie 2002 (1) SACR 663 (SCA), the Supreme Court of Appeal delivered a judgement which raised doubt whether the defence of non-pathological criminal incapacity is still available in our law.

The facts in this case were the following: X, a keen hockey player, consumed a large quantity of liquor at a social function. Late at night he got into his car and drove home. On the way Y, the driver of another vehicle, overtook X’s car and then drove very slowly in front of him in such a manner that X could not overtake him. After a while X did succeed in overtaking Y, who then drove at high speed behind X with his headlights on bright. The two cars then came to a halt. X, very angry, got out of his car, grabbed a hockey stick which happened to be in the car, walked to Y’s car and smashed the hockey stick to pieces against it. He then assaulted Y continuously, pulled him out of his car and continued to batter him outside the car while lying on the road. Y died as a result of the attack.

The above factual scenario demonstrates an incident known as “road rage”. On a charge of murder X relied on the defence of non-pathological criminal incapacity. The court rejected his defence and convicted him of murder.

The court discussed previous decisions dealing with this defence extensively, and then held (in par. 57 of the judgement) that there is no distinction between non-pathological criminal incapacity owing to emotional stress and provocation, on the one hand, and the defence of sane automatism, on the other. More specifically, there is, according to the court, no difference between the second (cognitive) leg of the test for criminal capacity (i.e. X’s ability to act in accordance with his appreciation of the wrongfulness of the act, in other words, his ability to resist temptation) and the requirement which applies to the conduct element of liability that X’s bodily movements must be voluntary. If X alleged that, as a result of provocation, his psyche had disintegrated to such an extent that he could no longer control himself, it amounts to an allegation that he could no longer control his movement and that he therefore acted involuntarily. Such a plea of involuntary conduct is nothing else than a defence of sane automatism.

The court did not hold that the defence of non-pathological criminal incapacity no longer exists, but in fact, made a number of statements which implied that the defence does still exist. At the same time, it nevertheless declared that if, as a result of provocation, an accused person relies on this defence, his defence should be treated as one of sane automatism (a defence which can also be described as a defence by X that he did not commit a voluntary act.) The court emphasised the well-known fact that a defence of sane automatism does not succeed easily, and is in fact rarely upheld.

After the Supreme Court of Appeal decision in Eadie, it is highly unlikely that an accused will succeed with an argument that, as a result of non-pathological criminal incapacity he acted voluntarily, but merely lacked criminal incapacity.

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.