Monthly Archives: April 2015

PAY YOUR LEVIES, OR ELSE…

Dear Mr Lawyer

I am the owner of a sectional title, and I have paid my levies every month as required, until the water started seeping through the ceiling of my enclosed balcony into my section when it rains. The leak was clearly emanating from a defect in the common property. I asked the body corporate on numerous occasions to repair the defect, yet after four months of writing letters and sending emails the body corporate still has not done anything to honour this simple request. As a frustrated owner I resorted to desperate measures and employed a contractor to repair the property defect. I settled the bill myself.

May I withhold my levies for a period to set off the money that is owed to me by the body corporate?

Dear Mr Owner

Although this action may sound reasonable, the right to stop paying or to set off a debt against levies is not legally justified and owners are not, under any circumstances, entitled to simply withhold levies.

There is no provision in the Sectional Titles Act 95 of 1986 or the rules that gives an owner the right to withhold levy payments. Even if an owner incurs expense in performing an emergency repair to the common property, and believes that the body corporate owes him money, the owner may only set off the debt against the levies once it becomes liquid.

An amount can only be liquid once it has been agreed upon. An owner cannot set off the amount he believes he is entitled to deduct. The trustees, judge or arbitrator must have confirmed the amount.

If Mr Owner does withhold his levies without the amount being liquid, he is subject to the following sanctions in terms of the prescribed rules:

l Firstly, the trustees are entitled to charge interest on arrear amounts at a rate determined by them, and so the defaulting owner may receive a larger account, due to the interest on his arrears, than if he had paid his levies.

l What is more, The Sectional Titles Act imposes a positive obligation on trustees to recover levies from defaulting owners. Not only does the Act empower them to charge interest, the scheme attorneys will most likely issue summons against the defaulter for all costs that the Body Corporate may incur in recovering any arrears.

l Secondly, the prescribed management rules provide that, except in the case of special and unanimous resolutions, an owner is not entitled to vote if any contributions payable by him in respect of his section have not been duly paid. Therefore, an owner who withholds his levies is unable to vote for ordinary resolutions in respect of the section that he is withholding levies on.

Mr Lawyer, how does an owner deal with a situation where he believes the body corporate is liable for payment?

A dispute must be declared with the Body Corporate by written notice of the dispute or query to the trustees. The trustees or Body Corporate then have 14 days from receipt to resolve the dispute. During this period, the parties should meet to try and resolve the dispute. If there is no resolution after the 14-day period, either party may demand that the dispute be referred to arbitration. The arbitrator must make his/her recommendations in settlement of the dispute within 7 days from the date of commencement of the dispute. The decision of the arbitrator shall be final and binding and may be made an order of the High Court.

It is clear that prescribed processes are in place according to which disputes and related issues can be settled. Not only will this ensure that you act within the legal guidelines, but it will also eliminate unnecessary frustration.

Copyright © Succeed Group. All rights reserved | Contact Us at info@succeedgroup.co.za

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.

TRAFFIC OFFICER CONFISCATES YOUR PHONE – WHAT YOU SHOULD KNOW!

Since 2011 the City of Cape Town: Traffic By-Law, 2011 has made it possible for an authorised officer to confiscate your cellular device if you are caught using it in your car while driving. If you end up getting caught red-handed, these are a few things you should know to make sure that all the correct procedures are followed when your cellular device gets confiscated.

The City of Cape Town: Traffic By-Law, 2011 (hereinafter “the By-Law”) prohibits driving a motor vehicle on a public road, firstly, while holding a cellular or mobile telephone or any communications device with any part of the body and, secondly, while using or operating a cellular or mobile telephone or other communication device unless it is affixed to the vehicle (like a handsfree kit).

According to the By-Law an authorised officer may, in the interest of public safety, confiscate a handheld communication device if he informs the owner of such device of the reasons for doing so. He must issue a receipt to the owner, stating the place at which such device may be claimed, and he must follow all procedures contained in any policy of the city dealing with the confiscation and impoundment of property. The policy applicable in the City of Cape Town is called the Standard Operating Procedure on the Impoundment of Goods and Animals, 2012.

An authorised official exercising authority in terms of any By-Law of the City to impound goods, shall issue to the offending party a receipt for any property removed and impounded. This receipt must indicate:

a) A list of the property to be removed and impounded;
b) the physical condition of the goods (to ensure that they are returned in the same physical condition that they were in when impounded);
c) the address where the impounded goods will be kept;
d) the hours during which the goods may be collected;
e) the maximum period for storage of goods before they are disposed of;
f) the conditions for the release of the impounded goods;
g) the name and office number of a council official to whom any representation regarding the impoundment may be made;
h) the date and time by when representation must be made;
i) the terms and conditions relating to the sale of unclaimed goods, by public auction, where no claim (and/or representation) is received.

The City may sell any cellular device that hasn't been claimed within ninety days after the date of impoundment through public auction which shall be advertised in local newspapers. Municipal officials and councillors, their spouses, relatives and acquaintances are prohibited from purchasing any of these impounded goods. Fees may be levied for the storage of the cellular device and any other expense incurred by the Council during impoundment. Said fees shall be determined by Council and may be adjusted from time to time. Fees and fines shall be paid at the Council cash office between the hours of 08:00 and 16:00 on Mondays to Fridays.

Goods may be returned to the owner, or his or her representative, upon presentation of proof of payment of all fees related to the impounding and storage of the goods and any fines imposed prior to and/or during impoundment. Owners or their representatives can collect their goods during the hours and at the venue indicated in the impoundment notice served on the offender.

Officials of the City must take reasonable steps to prevent any damage to impounded goods; however, it will not be responsible for any damage caused to goods where a reasonable duty of care was exercised. Digital photographs shall be taken of all impounded goods.

A person who contravenes a provision of this By-Law commits an offence and a person who commits such an offence is, on conviction, liable for a fine or a term of imprisonment not exceeding 3 years, or both.

Reference List

  • The Standard Operating Procedure on the Impoundment of Goods and Animals, 2012
  • The City of Cape Town: Traffic By-Law, 2011

Copyright © Succeed Group. All rights reserved | Contact Us at info@succeedgroup.co.za

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 NEW SOUTH AFRICAN IMMIGRATION REGULATIONS TIGHTENS SCREWS FOR FOREIGN SPOUSES

This article looks at the New South African Immigration Regulations that came into effect on 26 May 2014 and how it affects a spouse attempting to renew or obtain a spousal visa.

A Newlands family was torn apart after South Africa’s new regulations barred Louise Johnson from returning to South Africa after going on a family holiday in Namibia. Section 27 of the new regulations declared Louise Johnson, a Danish-born spouse of a South African, as an undesirable person. People who are travelling on an expired visa will be declared as undesirable people. This is very controversial because many foreigners, such as Louise, have applied well within the time limit, which is 60 days before the expiry thereof, and have still not received their renewed visa.

In order to apply for a spousal and life partner visa one must prove that the relationship has existed for two years before an application for this visa is made. One must also prove that the relationship still exists after two years. Further, if you are married to or in a life partnership with a South African citizen or a permanent resident holder, you have to be married for a continuous period of five years before an application for permanent residency can be launched.

Visa renewals often take months to process and in the past a receipt issued by the Department of Home Affairs, indicating that an application was pending would suffice. The new regulations bring this to an end. Foreigners who remain in South Africa for anywhere between one to thirty days after the expiry date of their valid visa will be deemed to be undesirable for a period of twelve months. A second transgression within a period of twenty-four months will render them “undesirable” for a period of two years and should they overstay for more than thirty days they will be classified as “undesirable” for five years.

For example Olivia Lock, a British National, who is married to a South African, was prohibited from returning to South Africa for 12 months in May, due to leaving South Africa on an expired visa whilst awaiting the outcome of a renewal of her visa. United States citizen, Shaima Herman, married to a South African, was also declared an “undesirable person”, after a two-year wait for the approval of her spousal visa. Her husband indicated that she had visited the Department of Home Affairs on 14 separate occasions and yet her visa remains delayed.

Haniff Hoosen from the Democratic Alliance stated that: “Media reports and public outcry suggest that in less than a month the new regulations have already ripped apart families, dissuaded investors, and led to the suspension and even cancellation of multimillion-rand film and tourism ventures”. He called for the regulations to be reviewed and debated by Parliament’s Home Affairs Portfolio Committee.

The Minister of Home Affairs, Malusi Gigaba, asserted that the new immigration regulations proposing to be in the best interests of South Africa’s security, is an insufficient excuse for inefficient policy. He further states that: “Omissions and lack of definitions and criteria raised serious concerns about the new regulations, which would be subject to “misappropriation and abuse” by the Department of Home Affairs and its officials.”

It is very likely that one can expect to see court cases challenging these regulations very soon but in the meantime one should not travel out of South Africa without a valid visa, or you will be declared an “undesirable person”.

Copyright © Succeed Group. All rights reserved | Contact Us at info@succeedgroup.co.za

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.

INTERNATIONAL LOVE MEETS THE LAW

A South Africa citizen “x” decides that he is going to study in England after leaving school. During this time abroad he meets the love of his life “y”, a British citizen. Both parties decide that they want to marry each other and are now unsure if the marriage will be valid once they return back to South Africa.

The abovementioned marriage and/ or relationship adequately demonstrate the need for private international law. Men and women of different domiciles and nationalities may fall in love and marry in the country where they happen to reside. Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnized. This is based on the common law doctrine of the law of the country were the marriage was solemnized ( lex loci celebrationis).

This rule is also subject to the fraud of the law (fraus legis) doctrine that will prevent parties from deliberately solemnizing their marriage elsewhere to escape some essential requirements of the law of the place of a party’s dwelling house (lex domicilii). Kassim v Ghumran & another 1981 Zimbabwe LR 22, may be considered more fully to illustrate the principle of evasion. Here Ghumran and Kassim had eloped from Zimbabwe to Malawi in order to marry. Kassim was only 15 years old and the consent of her parents, which was not obatined, was required for her marriage under the law of Zimbabwe. Kassim’s father sought an order declaring that the Malawian Marriage is void. The court held that where one or both parties were domiciled in the area of the court and had their marriage deliberately solemnized elsewhere to escape an essential requirement of the lex domicilii acted in fraudem legis.

The last exception to the lex loci celebrationis is the principle of public policy. The marriage will be against public policy if it offends fundamental moral principles of that society. Since the marriage relationship is one of the fundamental institutions of our society, it follows, none the less, that public policy will raise its head here. It does so primarily in two broad areas; marriages tainted by incest, want of age, or lack of consent and polygamous marriages, especially before the recognition of customary marriages is South Africa. The consensus seems to be that the union of siblings (whether of half or full blood) and the union of any blood relatives in the direct line will be against public policy (contra bonis mores).

Therefore their marriage will be valid in South Africa if they complied with the abovementioned international private law principles and that the marriage was legally conclude in accordance with the laws of England. It is also important to note that the legal consequences of the marriage will be governed by different international private law principles and the validity of the marriage will be determined according to the abovementioned principles.

Copyright © Succeed Group. All rights reserved | Contact Us at info@succeedgroup.co.za

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.