Author: My Lawyer (page 1 of 22)

Private schools in South Africa are not above the law

Private schools in South Africa are essentially autonomous in how they govern and operate. But does this entitle private schools to operate to such an extent that they regard themselves above the law?  A father in Durban sued a private school for victimising his son as he was in arrears with his school fees. This groundbreaking judgment recently handed down, gives private schools “food for thought” as to how they operate.

The background of this case, inter alia a minor child attended a private school in Durban. In and during the first few months of 2016, the parents of the minor child fell into arrears with the school fees. Between January 2016 and February 2016, there were letters and telephone calls from the school, demanding payment from the parents. The parents pleaded to the school for leniency and to afford them time to pay their arrears, as they were experiencing financial setbacks. The school did not accept this excuse and confirmed that they will not accept repayment terms and requested the full settlement of the arrear amount, failing which, the minor child would not be able to write the upcoming exams in May 2016. Although the parents pleaded with the school to allow their child to write the exams and that they will settle the fees by end of May 2016, the principal refused to negotiate any repayment terms. Subsequently the minor child, in terms of the school’s exclusion policy, was asked to sit in the art room while the rest of the children wrote the exams.

The father brought the application in the Kwa-Zulu Natal High Court citing the school and the principal as first and second respondent respectively. In his application, the applicant requested the Court to declare the exclusion policy, practised by the school, as unconstitutional.

The father was of the opinion, that in terms of the exclusion policy, whereby the second respondent instructed his son to sit in the art room, whilst the other children wrote the exam, his child’s interests were violated, in terms of S28(2) of the Constitution, which states, “a child’s best interest is of paramount importance in every matter concerning the child”. A further violation was in terms of S29 of the Constitution which states that everyone has a right to basic education.

The first and second respondent argued that it had no option but to implement the exclusion policy, as the applicant was not paying the school fees, which was required for the school to operate. The respondents further argued that the applicant did not need to enrol his child in a private school if he could not afford the fees, as there is the option of the public schools. It was further argued by the respondents that they exercised the exclusion policy rather than institute legal action, in order not to incur legal costs.

Should the second respondent have applied the contractual obligations that existed between the parents and first respondent, to enforce payment of the school fees, rather than subject the minor to the exclusion policy, which victimised, degraded and humiliated the child? But the biggest question is, aren’t private schools independent, which then consequentially are above the operations of the South African Schools Act or the Constitution?

After considering both the applicant and respondents’ arguments, the Court concluded that there was a valid contract between the applicant and the respondents. In terms of the signed contract, the first respondent had the necessary right to proceed with legal action against the applicant for non-payment of fees, which it should have exhausted first before taking any other steps!

The Court went on to say that a fair procedure must be followed. While it is understandable that schools, be it private or public may be allowed to exclude students, a correct and fair procedure must be followed. When making the decision to exclude a child, the schools’ representatives must bear in mind the best interest of the child, regardless if it is the child’s conduct or the parents’ conduct. It is not a necessity that parents must enrol their children in private schools and there are no rules and policies that restrain parents from doing so. One would assume that the parents consider the financial aspect first before enrolling their child in a private school. But parents’ financial circumstances can change, and private schools should be reasonable and have empathy to these changes and guide parents through this difficult time without victimising the child, as it is not the child’s fault as to the parents’ change in financial position. Time should be given to the parents to seek alternative solutions to the problem, e.g. change schools, make arrangements for a payment plan etc.

The Constitution is the sovereign law of our country and any conduct that goes against the spirit of the Constitution will be declared invalid by the courts, which the courts have the power to do so. Hence, implementing the exclusion policy for non-payment of school fees by the school was found invalid by the courts and unconstitutional.

Thus, private schools and even public schools must always remember, that they are there to protect our children and not cause them harm or humiliate them. Our children are the future leaders of our country and should be led by example.

Should the Constitutional Court ratify this ruling, approximately 760 private schools around the country will be impacted. We wait to hear.

Reference List:

  • NF MHLONGO vs JOHN WESLEY SCHOOL AND DARREN TARR KZN 4594/16

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)

What does 2019 have in store for the economy and the property market?

There is no doubt that 2018 was a very challenging year for both the economy and the property market. As 2019 is in full swing, you can’t help but wonder what challenges this year will hold for both the economy and the property market. In 2018, it was mainly business as usual, however, it is important to note that the demand for properties between the 3-million and 5-million mark decreased through the year. Reasons for this could have been the weak economy, political uncertainty and land ownership concerns.

So, what will the market have in store for home buyers/sellers in 2019?

It is argued that the market will most likely remain flat during the first few months of 2019. The reason being that we are heading towards the May elections, and this could be a turbulent period in 2019. In terms of the economy, there is a feeling of positivity in the air as the economy is expected to start lifting in the middle of 2019. The feeling of positivity can be attributed to the fact that the rating agencies have kept a stable outlook and President Ramaphosa has shown his commitment to eradicating corruption within the government.

It’s important to note that the final quarter of 2018 also had an impact on the economy and the property market for 2019. The festive season has come and gone, and as can be expected, many consumers found themselves indulging in the festivities and overspending. This has impacted many South African households’ finances, as there is now an increased pressure to meet monthly commitments in terms of housing bonds and rents. This should only have an impact on the economy and the property market in the early part of 2019.

It is also expected that the interest rate will go up with 2% over the next 18 to 24 months. This will, without a doubt, put even more pressure on household finances, in terms of higher bond and credit repayments, as well as cost hikes. This will have a huge impact on affordability.

If you are planning on buying or selling property in 2019, it’s important to keep price expectations realistic. Buyers should also strike while the iron is hot and not wait for too long, as all economies and property markets are subject to ups and downs. In conclusion, 2019 is the perfect year to buy property. Ensure that you do your research and make well-informed decisions when it comes to the property you want to buy, as well as the purchase price of the said property.

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)

Electronic signing of documentation

The commercial world is currently moving to greater levels of digitisation. Organisations are implementing automated and electronic solutions in an effort to improve efficiency and better the environmental footprint at the same time. The move to digitisation and electronic signatures prompted questions surrounding the legality of these documents. This article aims to highlight certain legal aspects of electronic signatures in both a general business environment and an audit industry environment.

Different types of electronic signatures

The Electronic Communications and Transactions Act, 25 of 2002 (ECTA) differentiates between standard electronic signatures and advanced electronic signatures. Standard electronic signatures include digital or scanned signatures. An example would be using an iPad to sign a document or merely printing, signing and scanning the document. Advanced electronic signatures are defined as electronic signatures which results from a process which has been accredited by the Authority as stipulated in Section 37 in the ECTA, for example, Quicklysign.

Standard electronic signatures are sufficient in most instances if and when the method of signing had not been agreed upon by the parties beforehand. Advanced electronic signatures are required for a suretyship agreement as well as signing as a Commissioner of Oaths (Section 18 of ECTA). Some documents are specifically excluded from being signed electronically (as per Schedule 2 of ECTA) for example:

  • an agreement for alienation of immovable property;
  • an agreement for the long-term lease of immovable property in excess of 20 years;
  • the execution, retention and presentation of a will; and
  • the execution of a bill of exchange as defined in the Bills of Exchange Act, 34 of 1964.

Electronic signature of financial statements

Stakeholders in the audit industry will be all too familiar with the challenges being posed by printing various sets of financial statements, only to be scanned again after signature. The industry seems to be one of those that will benefit from the efficiencies provided by electronic signatures but are these electronic signatures on a director’s and auditor’s report acceptable?

The Independent Regulatory Board of Auditors (IRBA) identified the increase in usage of electronic signatures on financial statements and audit reports and reported on the matter through the 2017 public inspections report. IRBA communicated that the following challenges are experienced by the practice of electronic signatures:

  • uncertainty as to the identification of the final version of the auditor’s report and annual financial statements;
  • uncertainty as to the approval by the company’s board of the exact final version of the annual financial statements; and
  • the risk that the incorrect annual financial statements are published.

We are of the opinion that an advanced electronic signature service provider, as approved by the ECTA, will sufficiently mitigate the above-mentioned challenges identified by IRBA. Contact us in order to obtain more information as to how we can assist in finalising documentation efficiently.

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)

Drones: How is it regulated?

Drones, also sometimes referred to as Remotely Piloted Aircraft Systems, are becoming increasingly popular amongst the civilian population. This is due to the fact that it is becoming widely available and increasingly affordable. Drone manufacturers are catering for all different types of consumers and different budgets, with some drone models retailing at less than a R1 000.00. This is good news for drone enthusiasts or those just looking for a fun past time activity. However, this increased popularity and accessibility means that more and more people own drones which result in increased drone activity in our airspace – which could cause chaos.

Disruptions at big international airports such as Heathrow and Gatwick have illustrated the chaos which can be caused by drones when operated illegally and irresponsibly. Numerous flights were suspended between 19 and 21 December 2018 at Gatwick Airport, Britain’s second-biggest hub, after drones were spotted in the vicinity of the airport in order to ensure the safety of the aircraft and passengers. This led to the disruption of thousands of travellers during the festive period.

One must distinguish between the operation of drones for commercial purposes vis-a-vis recreational purposes. The regulation of commercial drone operations (i.e., whenever a drone is used for commercial gain) does not fall within the scope of this article. However, readers are warned that one must have a Remote Pilot Licence when operating a drone for commercial purposes, and such a drone must be registered.

The remainder of this article will discuss how the use of drones for recreational purposes are regulated in South Africa. The South African Civil Aviation Authority (“SACAA”) has issued regulations which must be complied with when operating a drone for recreational purposes. You are not, according to these regulations, allowed to fly your drone in a manner which will in any way endanger the safety of another aircraft or person. This means that you are not allowed to:

  1. Fly your drone within 50 metres of a person or group of people. The regulations list sports fields, social events and schools as examples of places where you will be in contravention of this regulation should you fly there.
  2. Fly your drone within 50 metres of any property, unless you have obtained the consent of the property owner.

SACAA’s regulations further regulate the usage of drones for recreational purposes by imposing the following restrictions:

  1. You are not allowed to fly near any manned aircraft.
  2. You are not allowed to fly within a 10 km radius of any aerodrome (i.e. any airport, helipad, or airfield).
  3. Drones for recreational usage may not weigh more than 7 kg.
  4. You are not allowed to operate your drone within any restricted, controlled or prohibited airspace.
  5. Operating a drone more than 150 ft from the ground is prohibited.

SACAA’s regulations furthermore require drone operators to always maintain a visual line of sight with their drones when flying. This means that you must always be able to see your drone. Drone enthusiasts must only operate their drones in daylight and in clear weather conditions and should always inspect their drone before a flight.

It is of utmost importance to comply with the above regulations in order to ensure that you do not incur liability for any damages caused to people or their property. Readers are encouraged to do the necessary research in order to ensure that there are no regulations or by-laws which apply to their specific geographical area, since some local authorities may have specific restrictions in place.

Reference List:

  • http://www.caa.co.za/Pages/RPAS/Remotely%20Piloted%20Aircraft%20Systems.aspx
  • http://www.nameandshame.co.za/Articles/Drones-what-the-law-says

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)

Choosing guardians for your minor children

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it?

You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent.

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I passing away at the same time. We have been advised to nominate guardians in our wills. What should I keep in mind when choosing guardians?

Choosing guardians for your children is one of the hardest and most important decisions you will ever have to make. The thought of someone other than you raising your precious children is gut-wrenching. The worst part about it? You’ll never be fully comfortable with the choice, because no one can do as good a job as you. There is no perfect choice. However difficult it may be, naming guardians is a must-do for every parent. If the thought of placing the future of your children in someone else’s hands makes you queasy, imagine leaving the decision to someone you do not like, or do not even know. That is why parents should pick legal guardians – the persons who should raise their children if both parents die before the children turn 18.

When preparing a Last Will and Testament, the emphasis is typically on the disposition of property. However, selecting guardians to care for your minor children and nominating them in your Last Will and Testament is just as, if not more important, than distributing assets. The transition to life with guardians is especially traumatic as children come to terms with new parental figures, likely following the untimely death of one or both parents. The guardians you choose will be responsible for helping to heal this wound. It is of the utmost importance to choose guardians with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children.

Choosing guardians

The first hurdle in choosing guardians is finding someone who is willing to act in such an important and responsible capacity. Raising someone else’s children is not a decision potential guardians should take lightly, as assuming guardianship will change the rest of the guardians’ lives, as they step into the roles as surrogate parents. Besides finding willing persons, choosing guardians involves objective and subjective assessments different from choosing other fiduciaries such as trustees. Guardians should be reliable and stable, with sound judgment and values that are similar to your own. The guardians will need to comfort, teach and encourage your children as they grow towards adulthood. Guardians who already have a warm and loving relationship with your children would be immensely valuable in such an emotionally trying transition.

Selecting family members

Instinctively, many think the right guardians for their children are family members. However, in some cases, nonfamily members may be a better fit. Naming friends as guardians is increasingly common, though relatives are still the most popular choice. While family is frequently an obvious choice, circumstances may make this impractical or undesirable. Hopefully your children are comfortable with grandparents, or an aunt and uncle who may have similarly aged children of their own. If this is not the case, close friends with similar values, who live nearby, and who have kids of their own, may be a better option than faraway relatives. The choice is specific to your lifestyle and your relationship with your family.

Naming alternate guardians

Unfortunately, couples divorce and families break up. Choosing a couple as guardians could turn out to be problematic if they divorce or one is otherwise no longer able to serve in the role. Such a scenario could give guardianship to a person whom you are less inclined to have raise your children. If alternates are not named and the nominated guardians are unable to care for your children, the decision as to their care could end up being made by a court. As a result, it is advisable to name alternates in case the first choice is unwilling or unable to act. This way your wishes can be carried out and the paths of your children’s lives are not at the discretion of a judge.

Revisiting your choice of guardians

Once you have carefully selected the guardians and alternates and have nominated them in your Last Will and Testament, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities also change. You will want to make sure that the people you selected a few years ago are still the right choice today.

 

Reference List:

 

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)

Buying property online

We all know the hassle of moving, even if it is just around the corner. Due to family reasons, employment opportunities, or university studies, it is not uncommon for people to not only move down the road but also to move to different provinces in South Africa.

This is indeed a challenging task, however, technology has made it a lot easier to find the perfect home for you, even if you are nowhere near it.

Here are some tips you can follow if you are planning on buying property in another province and need to find your new home:

  1. Seize the power of social media:

Social media is a quick and efficient way to let your friends and family on social media know about your home search. The more people that know about your planned move, the more chance you have of someone in that area knowing of the perfect fit for you.

  1. Go online:

The first place that you can start your property hunt is online. You can easily gain access to massive amounts of available properties and information from the comfort of your own home.

  1. Virtual tours:

Don’t just look at the photos of the property posted online. A lot of properties have full virtual tours which means that you can take a virtual stroll through the entire property without physically being there. If the property does not have a virtual tour, you can use tools such as Google Maps to view the property and neighbourhood from the outside, giving you a clear indication of whether this neighbourhood is the perfect fit for you.

  1. Visit the area:

Visiting the surrounding area is ideal, but not always possible, especially if the property is far away. However, it is still a good idea to visit the area before moving. When you visit the area, you will have the opportunity to see the area and surrounds in person. You can plan your visit ahead, and schedule your viewings with your estate agent.

 

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)

What is the process of adoption?

This article discusses the process of adoption in South Africa and who has the power to grant adoption orders.

Introduction

The adoption process is regulated in South Africa by the Children’s Act 38 of 2005 (“the Act”). Adoption is one of the ways to help give abandoned minors a permanent or stable family life, which they would otherwise not have had. The Act provides that a child is adopted if the child has been placed in the permanent care of a person in terms of a Court order. Section 28(2) of the Constitution of the Republic of South Africa provides that every matter concerning a child, is of paramount importance.

Who can adopt?

A child may be adopted jointly by a husband and wife, partners in a permanent domestic life-partnership, or other persons sharing a common household and forming a permanent family unit. The Act goes further to say that a child may be adopted by a widower, widow, divorced or unmarried person, by a married person whose spouse is the parent of the child or by a person whose permanent domestic life-partner is the parent of the child, by the biological father of a child born out of wedlock, or by the foster parent of the child.

In terms of the Act, a prospective adoptive parent must be a fit person to be entrusted with full parental responsibilities and rights in respect of the child, willing and able to undertake, exercise and maintain those responsibilities and rights, over the age of 18 years old, and properly assessed by an adoption social worker.

What does the process entail?

A child may be adopted only if consent for adoption has been given by each parent of the child, regardless of whether they are married or not, or by the guardian of the child, the child – if the child is 10 years or older, or if the child is under the age of 10 years old but at an age to understand the implications of such consent.

If the parent of a child wishes the child to be adopted by a particular person, the parent must state the name of that person in the consent. Before consent for the adoption of the child is granted, the adoption social worker facilitating the adoption of the child must counsel the parents of the child and, where applicable, the child, on the decision to make the child available for adoption. The eligibility of the prospective adoptive parent must be determined by the Children’s Court.

The consent to adopt must be signed by the person consenting in the presence of a presiding officer of the Children’s Court, and signed by the child in the presence of the presiding officer (if consent of the child is required). The consent to adopt must then be verified by the presiding officer and filed by the clerk of the Children’s Court pending an application for the adoption of the child.

In certain circumstances, consent of the parent or guardian of the child to the adoption is not required, for example, where the parent or guardian is incompetent to give consent due to a mental illness, has abandoned the child, or if the whereabouts of the parents cannot be established, or if the identity of the parents are unknown, if the parents abused or neglected the child, failed to fulfil his or her parental responsibilities towards the child during the last 12 months, has been divested by an order of Court of the right to consent to the adoption of the child, and/or has failed to respond to a notice of the proposed adoption within 30 days of service of the notice. The Act lists further exceptions where consent is not required.

In terms of the Act, notice must be given by the presiding officer to each person whose consent to the adoption is required. If such person fails to comply with the request contained in the notice within 30 days, the person will be regarded as having consented to the adoption.

The application

An application for the adoption of a child must be made to the Children’s Court, and accompanied by a report by the social worker. The report must contain information on whether the child is adoptable, whether the adoption is in the best interest of the child, and medical information in relation to the child. The application must also be accompanied by an assessment referred to in Section 231 of the Act and a letter by the provincial head of social development recommending the adoption of the child.

A Court considering the adoption of a child must be satisfied that all the requirements, as set out above, have been met and that the adoption of the child is in the best interest of the child.

Conclusion

In South Africa, all prospective adoptive parents are required to comply with the requirements as set out in the Act to ensure a successful application.

Sources

Children’s Act 38 of 2005

 

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)

Absolution from the instance

This article gives an overview of what absolution from the instance is, and what the onus on the plaintiff is in order to avoid absolution being granted.

Absolution from the instance may be granted at the end of the plaintiff’s case, if the plaintiff has failed to adduce sufficient evidence upon which a reasonable court might grant judgement in favour of such plaintiff, or the plaintiff has not produced sufficient evidence to establish a prima facie case, in other words, a case of which all the elements of the claim have been proven.[1]

The test for absolution to be applied at the end of a plaintiff’s case is set out in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) (SCA) at 92E-93A as formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H:

“When absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.”

If the above-mentioned test is applied, a plaintiff must have delivered evidence relating to all elements of the claim. For example, in the case of a contractual claim, the plaintiff must have proven the existence of a valid contract, the material terms of such contract, and breach of the contract.

In reaching a conclusion whether absolution should be granted, it is not required of a court to critically look at all the evidence, as would be required of a court at the end of a trial in order to deliver judgement. The onus on the court is less stringent, as there should only be evidence on which a court could or might find for the plaintiff.

Absolution is granted sparingly, as also confirmed by the Gordon Lloyd judgement. Absolution from the instance conflicts with the legal principle audi alteram partem, which means that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. If absolution is granted, the defendant is not called at all to answer to the plaintiff’s claim, which could possibly result in an unfair result to the plaintiff. A defendant’s legal representative often put certain facts to the plaintiff’s witnesses under cross-examination, on the basis that their witnesses will come to testify as to such facts. If absolution is granted, a legal representative might have put a version before the court, which has not been tested by those legal representative’s witnesses, which is not fair to the plaintiff.

Conclusion:

Absolution from the instance should not be granted lightly by courts and should only be granted in circumstances where the plaintiff’s case is so weak that no reasonable court could find for the plaintiff.

[1] Petè et al: Civil Procedure: A Practical Guide, second edition, 2012 p 577

 

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)

Buying a Property on Auction

Properties sold on auction is not necessarily the bargain buy everyone seems to think it is. This is because the property on auction isn’t necessarily being sold due to financial distress. In today’s times, homeowners have turned to auction as a means of selling their property as soon as possible and for as a high a price as possible. When planning on buying a property on auction, it is important to do your homework and prepare. This is what you need to know about property auctions:

There are different types of properties that can be bought on auction, they include:

  • Property up for sale by the owners themselves as a means of selling the property as quickly as possible.
  • Sale in execution. This is a sale due to the financial distress of the property owner.
  • Property in possession. Property that has been bought back by the bank, in other words, a repossessed property.

What to do before the auction:

Before the auction, there are certain things you can do to prepare, this includes:

  • Viewing the property before the auction, as these properties are sold “as is”.
  • Gather additional information on the property being auctioned ahead of time. Find out more about the area, local schools, facilities, asking price for properties in the said area etc.
  • Make sure to have a copy of the Conditions of Sale. The reason being, before buying this property, it is important to know exactly what you are buying. You could be taking over accounts that have not yet been paid etc.
  • If you are going to bid on a property, ensure that your finances are ready well in advance.
  • Finally, if you cannot physically attend the auction, and want to bid by phone, you will have to organise this in advance.

What to do at the auction:

When arriving at the auction, there are certain processes that need to be followed before you can bid on the property, this includes:

  • When arriving at the auction, you need to register to bid on the property. To register, you will need your ID, proof of residence, and the fee for registration.
  • Go through the provided Conditions of Sale and ensure that no changes have been made to the document.
  • Ensure that the auctioneer can clearly see you.
  • If your bid is successful, you will be instructed to sign the Conditions of Sale as a means of confirming your purchase.
  • You will then have to pay the auctioneer’s commission which is usually 10% of the purchase price plus VAT, as well as a deposit of 5% of the purchase price.
  • You will need to have the funds shortly after the auction as this is a guarantee to the seller that you can purchase the property.

What will happen after the auction:

After the auction, if the buyer of the property is dissatisfied with the property for whatever reason, it’s too late. This is because auction properties are sold “voetstoots”, which means “as is”. This is one of the main reasons why it’s so important to see the property as part of your preparation before the auction. It’s also important to note that if the buyer defaults on the sale, the seller can take legal action and force the buyer to fulfil the contract. Before bidding on a property, it is important to make sure that you want to buy and can afford to buy the property being auctioned, as the breaching of contracts comes with serious financial and legal repercussions.

The Cybercrimes Bill: Malicious messaging over social media could send you to jail

South Africans will soon have to be much more careful and think twice about the messages they send over WhatsApp and other social media platforms, as the Cybercrimes Bill (“the Bill”), which was recently adopted into law and is in the process of being enacted, attempts to police malicious messaging.

Cybercrime is on the rise and the Bill essentially aims to stop these acts, to keep people safe from criminals and terrorists, to improve the security of the country and to bring South Africa in line with other countries’ cyber laws. The practical impact of the Bill on all organisations and individuals are significant and unfortunately mostly negative. It impacts all of us who process data or use a computer.

Contravening the provisions entailed in the Bill could lead to a fine or imprisonment for a period not exceeding three years, or to both a fine and imprisonment. The Bill fundamentally intends to curb the number of harmful messages, which by definition now covers a wide range of subject areas, that do the rounds on social media.

The Bill incriminates, amongst others, the following acts in particular:

  • Disrupting another’s personal details: By sharing another’s personal details online for malicious purposes, without their knowledge and/or consent.

 

  • Unlawful sharing of intimate images: Publishing and/or distributing another’s nude intimate images or multimedia files of an intimate nature will constitute a harmful disclosure of pornography, which the Bill seeks to regulate. The Bill describes an “intimate image” as both real and simulated messages which shows the person as nude or displays his/her genital organs or anal region. This includes instances where the person is identifiable through descriptions in a message or from other information displayed in the data message. These acts can cause extensive reputational damage to another, especially if the said person had no intention of making it public.

 

  • Sharing of information regarding investigations into cybercrimes: The Bill enables the Minister of Justice to make regulations on information sharing. This includes sharing information on cybersecurity incidents, detecting, preventing and investigating cybercrimes.

 

  • Inticing damage to property belonging to “a group of persons”: Sharing messages which encourage people to damage property belonging to a certain demographic group, could lead to an arrest simply for the incitement rather than the act. This act includes any implied threats of violence against “a group of persons”.

 

The Bill was first published on 28 August 2015, updated on 19 January 2017 and introduced in Parliament on 22 February 2017, where it currently still sits. There have been extensive comments on the Bill during the public participation period in 2017. These comments have been considered and incorporated and the latest version of the Bill was published on 23 October 2018. The new version of the Bill creates many new offences, some relating to data, messages, computers and networks.

 

The Bill has come a long way since its first publication and the overall effect of its provisions will be tested over time. Readers are, however, advised to take note of the Bill and its consequences before it is signed into law, as ignorance of the law will not be an excuse.

 

Reference List:

 

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)

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