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Blue Skies Ahead for Property? Be Prepared with this Buyer’s Checklist
 

This Wedding Season: What’s in a Surname?
 

Employers: It’s November Again. Must You Pay 13th Cheques?
 

No Means No: What the New Case on Consent Means for Victims of Sexual Violence
 

Legal Speak Made Easy
 

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November 2024


Blue Skies Ahead for Property? Be Prepared with this Buyer’s Checklist


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“Don’t wait to buy land, buy land and wait.” (Will Rogers)

Summer’s a great time to look for property. With the year winding down and the holiday season upon us, many sellers who’ve been holding back are now putting their properties back onto the market, so expect to see some great new buys out there.

But that’s not the only reason…


Blue skies ahead?

The recent interest rate cut, which hopefully heralds more cuts to come, will not only make bond repayments more affordable, but it should also help stimulate our economy generally. If these positive trends hold, the resultant uptick in economic activity, with reduced pressure on consumers and higher earnings for businesses and individuals, should increase demand for property. And that, of course, would see prices move into an upward phase.

So, if you have any thoughts at all of buying a new home or investment property, now could be the perfect time to do it. If you wait too long, prices could really jump.

It is of course essential to go into the process well-prepared. We’re talking about one of your most important long-term investments, after all. So, here’s our checklist.


Your buyer’s checklist

Every buyer and every buying situation will be different, so do bear in mind that this list is just a rough guide to some of the more important factors to consider when looking for a property and/or making an offer.

  1. Location is key

    When it comes to real estate, location is one of the most critical factors. You can change a lot about a property, but you can’t change its location. Consider the following:

    • Work and schools: Is the property close enough to your place of work and your children’s schools?

    • Local amenities: Are there shopping centres, medical facilities and other amenities nearby?

    • Safety: Research the crime statistics in the area. How secure is it?

    • Growth and resale potential: Historically, have prices risen in line with other areas? Are there any planned developments in the area, such as new roads, malls, or housing estates?

  2. Budget wisely

    Be clear about your budget before you start looking at properties. Don’t only consider the price of the property but also the additional costs involved:

    • Transfer costs: These include transfer duty, conveyancing fees, and other legal costs associated with the purchase.

    • Bond registration costs: If you’re taking out a home loan, you’ll need to pay bond registration fees.

    • Rates and levies: Investigate the monthly rates you’ll need to pay, plus levies if the property is part of an estate or complex.

    • Maintenance: Be realistic about the maintenance costs you may face after purchasing the property. The 1% rule advises setting aside at least 1% of the home's value every year for upkeep.

    Put all those costs, and other items like deposits that need to be paid, into a cash flow forecast so you aren’t caught short at any stage of the process.

  3. Beware online fraud!

    When it comes to paying the deposit and then, later, the costs and balance of the purchase price, be very aware of the dangers of phishing and fake emails. Don’t pay a cent to anyone without personally phoning them to confirm their banking details!

  4. Conduct a thorough inspection

    Before making an offer, it’s crucial to inspect the property carefully. Look for any signs of wear and tear that could lead to costly repairs down the line:

    • Structural issues: Cracks in the walls can be a warning sign of bigger problems.

    • Damp and leaks: Check for signs of damp, especially in bathrooms and kitchens.

    • Electrical, plumbing and gas: Ensure that the wiring, gas and plumbing systems are in good working order.

    Consider getting a professional inspection done to avoid surprises after the purchase. Pay close attention to the “mandatory disclosure form” that the seller must give you – it should list all known defects, boundary line disputes, building plan issues and the like. Also have a close look at all the compliance certificates that the seller is obliged to obtain – electrical, beetle, gas (if applicable), electric fence (if applicable) and water installation (Cape Town only).

  5. Who’s the buyer?

    Consider also who is going to be the buyer? You? Your spouse or life partner? Both of you? A trust? Another entity?

  6. Buying into a complex?

    If you’re buying into a complex, have you checked what rules and regulations you’ll be bound by? What levies you will pay, what special levies may be on the horizon, and whether the scheme’s finances are sound?

  7. Beware nasty surprises…

    Make sure there are no nasty surprises lurking in the shadows. Like servitudes or restrictions in the title deed, or undisclosed tenants or unlawful occupants on the property.

    If you plan to extend or subdivide the property, or to use it for anything other than residential purposes, check both the local zoning regulations and the title deeds for restrictions.

    And if that beautiful sea or mountain view is important to you, what will happen if the neighbours suddenly decide to go double or triple storey? Does the zoning allow that? Is it a realistic risk? What about other risks like a busy Airbnb or home business opening up next door?

    Ask for a copy of the occupancy certificate and of building plans, and check with the local municipality that all structures are legal and built as per approved plans. Otherwise, your friendly local authority might suddenly be knocking on your door with a not-so-friendly demolition order – as happened in a recent case in the Pietermaritzburg area.

  8. Understand the terms of the offer

    When you're ready to make an offer, ensure you understand the terms of the agreement. Pay close attention to:

    • Suspensive conditions: These are conditions that must be met before the sale goes through, such as securing a home loan. Check the wording carefully, the “bond clause” in particular is often a source of confusion and dispute.

    • Occupational rent: If the seller remains in the property after the sale, you may be entitled to receive occupational rent until you take possession. If, on the other hand, you take possession prior to transfer, you’ll probably have to pay occupational rent to the seller.

    • Deposit: Know how much deposit is required and when it must be paid.

  9. Get professional help

    Since buying property is one of the biggest financial decisions you’ll make, it’s essential to have experienced professionals guiding you through the process – from finding the right property to ensuring all the paperwork is in order.


The bottom line

There is a myriad of important factors at play, and you only get one shot at getting this right. So, before you agree to or sign anything, contact us. Let us help make your property purchase stress-free and rewarding!






This Wedding Season: What’s in a Surname?


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“That which we call a rose, by any other name would smell as sweet.” (Shakespeare, in Romeo and Juliet)

Your wedding to-do list will be a long one, and getting all the “boring legal bits” in order before you marry may not seem like a huge priority. But it is. Choices you make now will affect both of you (and your families) forever.

One of those choices is what surname/s you want to adopt in your marriage. We’ll discuss your options below. And although they’re currently available only to women, there’s good news on that front – a recent High Court decision has set the stage for men to be given the same choices as women.


What’s the current position?

In terms of our Births and Deaths Registration Act, as a man you can only change your surname by application to the DHA (the Department of Home Affairs) but as a woman you can automatically:

  1. Take your husband’s surname, or

  2. Revert to or retain your maiden surname or any other prior surname, or

  3. Join your surname with your husband's as a double-barreled surname.

Those choices are of course a huge improvement on the old default position of wives automatically having to take their husband’s surnames. But there’s still inherent inequality in the law: while women have these choices as of right, a man still has to apply to the DHA for authority to change his surname. Worse still, he must give a “good and sufficient reason” for his application, and the applicable regulations say that in this context your reason “must relate to a change in the marital status of a woman”. These regulations have previously been declared invalid as “ultra vires” (made without authority) but they are very specific in excluding men from the equation.


Two couples challenge the status quo – and win

The groundbreaking High Court decision stems from the resolve of two couples to challenge that remnant of gender inequality:

  1. J… and H… (their full names aren’t used in the judgment to respect their privacy) wanted to use J’s birth surname as it symbolized her connection to her parents who died when she was four. H pledged his unwavering support for her stance and wanted her surname to be their family name in which their children would be raised. The DHA agreed that J could retain her surname but said it was unable to allow H to adopt the same name.

  2. Jess and Andreas (their names were included in the judgment) decided that, because Jess is an only child whose maiden surname is important to her, they would both combine their surnames into a hyphenated surname. They wanted their names to be the same and to reflect their familial unit. It was only when the time came to complete their marriage certificate that they realised only Jess could go the double-barrel route. The DHA again said they couldn’t do the same for Andreas.

In a joint application, the couples asked the High Court to declare that the relevant sections of the Act and regulations are unconstitutional. Our Constitution states, after all, that the right to equality includes full and equal enjoyment of all rights and freedoms, with the State being prohibited from unfairly discriminating directly or indirectly against anyone based on, among other things, gender or marital status. They argued that that “the Act has retained an archaic and patriarchal default position that only women are entitled, as of right, to assume a different surname.”

The Court with little ado issued the order of unconstitutionality, giving parliament two years to remedy this and ordering that in the interim men will have the same rights as women to change their surnames and to resume previous surnames on marriage, divorce or the death of a spouse. It also specifically ordered the DHA to amend these two couples’ surnames as requested.


Now it’s over to the Constitutional Court, then on to parliament

The order of unconstitutionality only comes into force as and when confirmed by the Constitutional Court so for now unfortunately your choices remain limited as above.

Whatever you settle on, before making your final decision you might want to ask us about the legal consequences. Then tell the marriage officer upfront what your choice is so that your marriage certificate, marriage register and National Population Register all reflect your married names correctly.

If you need assistance with this, or any other legal aspect of marriage, please contact us. (But please don’t ask us for help with the flowers!)






Employers: It’s November Again. Must You Pay 13th Cheques?


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"The best investment you will ever make are your employees" (Peter Drucker)

As the end of the year approaches, many employees are eagerly awaiting their 13th cheque or year-end bonus. However, not every employer is in a position to pay bonuses, and this can lead to disappointment, disputes, or even legal action if expectations aren’t managed properly.

Read on to find out whether you’re legally required to pay a bonus, and how you can avoid potential conflict.


What does the law say?

There’s a common misconception that South African law obliges employers to pay annual bonuses. This is not true. There’s no automatic legal requirement to pay a 13th cheque or other bonus unless certain conditions apply:

  • Employment contracts: If the employee's contract states that an annual bonus or 13th cheque is part of their remuneration or guaranteed rather than discretionary, you are legally obliged to pay it.
  • Company policies or agreements: Bonuses may also be provided for in company policies, collective agreements, or other documents. You need to follow these agreements unless circumstances make it impossible to do so.
  • Custom and practice: If your business has consistently paid bonuses in the past, this may have created a “right of expectation.” In such cases, suddenly discontinuing the bonus without prior consultation may be viewed as unfair, and employees could take legal action for unfair labour practices.


How to avoid disputes: Prepare, plan and communicate

You can avoid the common disputes over bonuses by focusing on three essential actions: preparing, planning and communicating.

1. Prepare

  • Review all employment contracts and company policies. Ensure these documents are up-to-date and clearly state whether bonuses are discretionary or dependent on conditions such as company performance or employee contributions.

  • Be aware of any past practices. If bonuses have been paid regularly in the past, employees will almost certainly assume this will continue, even without it being part of their contract. They could also think that bonuses are an automatic right, and not based on performance. If you’ve paid bonuses in previous years, structure your policies carefully so that paying a bonus in good years doesn’t create enforceable rights (or even unrealistic expectations) in less profitable years. Specific legal advice on this point is crucial to avoid disputes.

2. Plan

  • Use cash-flow planning to assess your ability to pay bonuses so you can make informed decisions about whether or not you can afford bonuses, and to give you early warning of any possible challenges.

  • When you’ve made your decision, think about how and when to tell your staff about it.

3. Communicate

  • Clear and early communication is key to managing employee expectations. If you won’t be paying bonuses this year, or will be reducing the amount, let your employees know well in advance to avoid last-minute disappointment.

  • If you are able to pay bonuses, take the opportunity to reinforce the link between performance and reward. Thank everyone for their hard work and contributions to the success of the business.

  • Remind staff about the taxman waiting in the wings for his cut. This could come as a nasty shock, particularly if the bonus pushes an employee into a higher tax bracket.

  • Open communication and consultation build trust and help maintain morale and productivity, even if the news is disappointing. Employees will appreciate honesty and clarity, especially if you’re facing financial difficulties.


How we can help

If an employee believes they are contractually or customarily entitled to a bonus and you fail to pay it, they may cry “unfair labour practice” and take the matter to the CCMA (Commission for Conciliation, Mediation and Arbitration).

If you’re uncertain about your obligations or if you anticipate disputes, we’re here to help. We can review your employment contracts, assess past practices, and provide guidance on how to manage employee expectations legally and fairly.






No Means No: What the New Case on Consent Means for Victims of Sexual Violence


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“Sexual violence is a horrific reality that continues to plague this country.” (Quoted in judgment below)

It’s often said that victims of rape and other types of sexual violence have to suffer twice – firstly at the hands of the rapist and secondly at the hands of the law.

A recent High Court ruling on the knotty question of consent could go some way towards remedying this. At the heart of the matter is the delicate balance between a victim’s right to be treated with dignity and compassion in their quest for justice, and the accused’s right to be presumed innocent until proven guilty in a fair trial.


The consent conundrum

To secure a conviction of sexual violence the State must prove – beyond reasonable doubt – the absence of consent to the accused person’s actions. Unfortunately, major injustices have resulted in the past from the fact that many perpetrators escaped conviction by simply claiming that they believed that consent had in fact been given – without having to show that their belief was in any way reasonable.


Two shocking acquittals

The Court referred to two practical examples of grave injustice rooted in the current wording of the Criminal Laws (Sexual Offences and Related Matters) Amendment Act:

  1. A woman had agreed to oral sex only, but her then-boyfriend proceeded to perform full penetrative sex. He claimed that her body language gave tacit consent to penetration and that he misconstrued her request to him to stop as a request to pause momentarily. He was acquitted on the basis that his version was “reasonable and possibly true, although his explanation was improbable”. The complainant had not objectively consented, but the State had not proved beyond reasonable doubt that his version that he genuinely believed that there was at least tacit consent, was false. The court considered itself bound to acquit “unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false.”

  2. In the second case, a woman was raped by a man she met through an online dating site. He had invited her to his home for a “party” at which she turned out to be the only guest. The perpetrator was acquitted on the basis that, although the victim had not objectively consented to the penetration, “she neither physically resisted nor loudly protested. The State did not exclude the possibility that the accused did not hear her say ‘no’ and did not prove beyond reasonable doubt that he was aware that she was not consenting. Put differently, the court accepted that he had subjectively believed that there was consent.”


Enter a welcome new limit to the consent defence

The courts in question had no choice but to acquit given the Act’s present wording, and as the High Court put it: “Currently … an unreasonable belief in the presence of consent is a defence. The State bears the extraordinarily high burden to prove that the accused's claim that he [it could of course have been a “she”] was under the impression that consent had been given is not reasonably possibly true.”

It accordingly held the relevant sections of the Act to be unconstitutional and invalid and ordered that they be read such that “…it is not a valid defence for that accused person to rely on a subjective belief that the complainant was consenting to the conduct in question, unless the accused took objectively reasonable steps to ascertain that the complainant consented to [the] sexual conduct in question.” (Emphasis supplied).


How will our courts interpret this in practice?

Based on the Act’s current wording, our courts have previously held that, “where there was no express rejection of the sexual act … consent has the following requirements: (a) the consent itself must be recognised by law; (b) it must be real consent; and (c) it must be given by a person capable of consent.”

Assuming the Constitutional Court upholds the High Court’s declaration of invalidity, we can only guess how our criminal courts will ultimately interpret whatever new wording it and parliament (which has 18 months to amend the Act) finally settle on. But something like the five-point common sense definition of consent given in Amnesty International’s article “Let’s Talk About Consent” may well form the basis of judicial interpretation down the line.

The article further suggests that “Consent is not about signing a contract! It’s about communication and about making sure all sexual activities happen with mutual consent.” Which seems like a fair and practical way of looking at it.


The bottom line?

One would hope that our courts will ultimately decide that only a genuine, unequivocal, unpressured, informed, specific and un-retracted “Yes” will be enough to escape conviction.

As a final thought, remember that this new law only comes into force if and when the Constitutional Court confirms it.






Legal Speak Made Easy


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“Ultra vires”

Ultra vires literally means “beyond the power” and is an important concept because if anyone (such as a company, director, government body, official or the like), acts beyond their powers, that action is invalid for the reason that they lacked the necessary legal authority to take it. You are most likely to come across the concept with companies or trusts acting outside their powers, or with ministers making regulations beyond the legal authority granted to them by an act of parliament. Such actions are not always held to be invalid, but as a rule, everyone must work within the powers granted to them.





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  Disclaimer

The information provided herein should not be used or relied on as 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 us for professional, detailed and appropriate advice.