Category: General

SECTIONAL TILES: WHAT IS THE ROLE OF THE BODY CORPORATE?

When it comes to sectional title schemes, there is still widespread misunderstanding of even the basics, starting with the body corporate and how it is established, as well as what its functions and powers are. This misunderstanding often gives rise to many problems and disputes in sectional title schemes which could quite easily have been avoided.

What is a sectional title?

A Sectional Title Development Scheme, usually referred to as a “scheme”, provides for separate ownership of a property, by individuals. These schemes fall under the control of the Sectional Titles Act, which came into effect on 1 June 1988.

When you buy a property that’s part of a scheme, you own the inside of the property i.e. the space contained by the inner walls, ceilings & floors of the unit. You are entitled to paint or decorate or undertake alterations as desired, providing such alterations do not infringe on municipal by-laws.

What is the body corporate?

The Body Corporate is the collective name given to all the owners of units in a scheme. Units usually refers to the townhouses or flats in a development. The body corporate comes into existence as soon as the developer of the scheme transfers a unit to a new owner. This means that all registered owners of units in a scheme are members of the Body Corporate.

  1. The Body Corporate controls and runs the Scheme.
  2. Day-to-day administration of the Scheme is vested in trustees who are appointed by the Body Corporate.
  3. Major decisions regarding the Scheme are made by the Body Corporate, usually at the annual general meeting (AGM), or at a special general meeting (SGM). At these meetings, matters, which affect the Scheme, are discussed, budgets are approved, rules can be changed and trustees are appointed. Each member of a Body Corporate is entitled to vote at these meetings, providing that the member is not in arrears with levy payments or in serious breach of the rules.

The Body Corporate exists to manage and administer the land and buildings in the scheme. This means, that the Body Corporate is required to enforce the legislation and rules in the Sectional Titles Act, the Management Rules and the Conduct Rules of the scheme. Amongst their other duties, the Trustees manage the Body Corporate’s funds, enforce the rules and resolve conflict to the best of their ability.

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)

References:

http://www.angor.co.za/news/understanding-sectional-title-terminology-body-corporate/

http://www.sectionaltitlecentre.co.za/faqs.aspx

http://www.bizcommunity.com/Article/196/568/161017.html

 

HOW AND WHEN TO USE THE SMALL CLAIMS COURT

The small claims court (SCC) is for anyone who wants to institute a minor civil claim against someone else. You can also claim against companies and associations. However, the claims are limited to amounts that are less than R15 000. This excludes the State, meaning a person cannot make a claim against a local municipality, for example. Claims made in the SCC are done quickly and cheaply without having to use an attorney and anyone, except juristic persons, are allowed to use them.

Read more about the SCC on The Department of Justice and Constitutional Development’s website: justice.gov.za

Where do I start?

If you are going to institute a claim against someone else, be smart about it. Don’t make a claim against someone who you know has no money to pay you back, such as an unemployed person.

Before running to the court to make a claim, first contact the person you intend to claim from and ask them to fulfil your request. Let them know you are planning on going to the court to make a claim against them if they don’t comply.

Perhaps the person is not interested in your claim, then send them a written demand letter. The letter should set out the details of the claim, including the amount. Give them at least 14 days from the day of receiving your letter to settle your claim.  Make sure they get an actual physical copy of the letter. This can be posted to them, or you can simply take it to them directly.

So 14 days has passed and they didn’t respond. Now you can go to the clerk of the court with documents to institute your claim. Firstly, you will need proof that you delivered the letter of demand. This can be a post office slip, for example.  You will also need a contract or document that gives a bases for your claim. Your claims can’t just be based on thin air. Lastly, provide the court with all the details of the person you’re claiming from, such as name, address and phone number.

The summons

The clerk of the court will help you in drawing up the summons.  Once the summons is complete a hearing will also be scheduled. You then have to serve the summons to the opposing party (defendant) in person and get them to sign it. Don’t be surprised if they are visibly upset. Remember to make copies of all the documents and keep them. Also give copies to the defendant. The original documents must be handed over to the clerk of the court before the day of the hearing. This information will be kept in the court file.

After they receive the summons, the defendant may deliver a plea (written statement) to the clerk of the court. They may also issue a counterclaim. Regardless of whether the defended institutes a plea or counterclaim, they still have to attend the hearing. On the other hand, the defendant may decide to fulfil your claim before the hearing, you should then issue a written receipt and let the clerk of the court know that you won’t be continuing with the case.

Going to the hearing

You and the defendant must appear in court in person, attorneys or lawyers are not necessary. Remember to bring along all the documents on which your claim is based, there’s no point in showing up empty-handed. If you have witnesses, make sure they also come with you to the hearing. The SCC proceedings are basic and straight-forward. As mentioned, no attorneys are involved. As the proceedings begin, answer any questions that the commissioner of the court asks you. If you want and the commissioner agrees, then you can direct questions to the defendant. 

The final judgment

After the proceedings have been completed, the court will make a judgement, which is final. There may, however, be some grounds for review. If the judgement is against you, then you should settle any order for costs. Since the court judgement is final, you have to abide by it. You can’t change your mind afterwards.

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)

THE DIFFERENCE BETWEEN A STRIKE AND A LOCKOUT

my-lawyer_images_oct-02Workers have a right to strike, and employers have a right to lock out workers, if a dispute cannot be resolved. Certain procedures and certain limitations apply under certain conditions. Secondary strikes and pickets may also be held.

What is a strike?

To strike is the refusal to work, the slowing down of work or the obstruction of work by employees (“strikers”). A strike takes place to resolve a dispute between the employees and their employer. The dispute must be about something in the employer’s control for example, wages, improved working conditions and other disputes of mutual interest.

While employees have the right to strike, an employer has an option to lock-out. However, these rights can sometimes be limited, for example, if the employees are bound by a collective agreement or are involved with essential services.

What is a lock-out?

A lock-out is the refusal of the employer to grant the employees access to the workplace. This means that the employees are not able to tender their services and as a result will not be paid.

A lock-out takes place in response to a strike or to force the employees to accept a demand of the employer. The demand must relate to disputes of mutual interest. The demand of the employer can be, for example, to force the employees to accept changes to their terms and conditions of employment.

The rights of workers and employers

Every worker has the right to strike, and every employer has the option to lock out workers, if:

  1. a dispute has been referred to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
  2. a certificate that a dispute remains unresolved has been issued;
  3. 30 days have elapsed since the referral; and
  4. 48 hours’ written notice of a strike is given to
  5. the employer; or
  6. a council (if the dispute relates to a collective agreement to be concluded in a council); or
  7. to an employers’ organisation (if the employer is a member of an organisation that is a party to the dispute); or
  8. 48 hours’ written notice of a lockout is given to
  9. the trade union; or
  10. to the workers (if they are not trade union members); or
  11. a council (if the dispute relates to a collective agreement to be concluded in a council).

What happens when a dispute cannot be resolved?

Step 1: Conciliation – the dispute must be referred to the Council for Conciliation, Mediation and Arbitration (“CCMA”) or Bargaining Council for resolution.

Step 2: Certificate of outcome – if the dispute remains unresolved, or; a 30-day period has expired since it has been referred to the CCMA a certificate of outcome must be obtained.

Step 3: Notice of Commencement – at least 48 hours prior to the strike or lock-out a written notice of the commencement must be given.

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)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/strikes-and-lock-outs/

http://www.labour.gov.za/DOL/legislation/acts/basic-guides/basic-guide-to-strikes-lockouts-and-picketing

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