THE IMPORTANCE OF HAVING AND COMPLYING WITH A DOMICILIUM CLAUSE

Written contracts almost invariably contain a clause which provides for addresses at which parties to the contract will accept notices from the other parties. This clause is called the “domicilium clause.” It is important for the future relationship between the contracting parties that they abide by what is contained in the domicilium clause, particularly insofar as service of legal documents is concerned.

Often, natural persons will sign as a surety for a business. If they are intimately involved with the activities of the business (for example, in the case of a director) they will often place as their own domicilium address as that of the business. However, should the business address change and no notice is given to the other party, and that party should serve a legal process such as a Summons at the domicilium address, the surety exposes themselves to judgment being obtained against them without even knowing of the existence of the Summons. It is therefore vitally important to pay attention to the domicilium clause in any contract.

How does service at the address need to be effected?

How (and by whom) service needs to be effected depends on the nature of the documents to be served.

By whom:

Day-to-day business documents:
• It is advisable that notices and documents sent in the ordinary course of business be sent via registered mail, or delivered by hand, accompanied by an acknowledgement of receipt to be signed by the recipient.

Documents which initiate legal proceedings (summons, notice of motion)
• These documents must be served by a sheriff of the court in whose jurisdiction the recipient operates.

How:

This will depend on how much detail is given in the domicilium clause. Where a physical address is given, it will be sufficient for the mailman or sheriff to affix the notice to the building, where for example there is no answer at the door, or where the occupants of the building refuse to accept service.

Domicilium clauses in which a specific method of service is stipulated should by strictly complied with. Thus, where a specific office in an office park is stipulated in the clause, simply leaving a document at the front office of the office park will be insufficient.

However, where the domicilium address refers only to an office park (and not the specific office) simply leaving the document with a person working at the office park will constitute good service. It is thus important to include enough detail in the clause to ensure that documents are actually delivered to the recipient.

For quality legal services contact us on 041 501 9800.

Small Claims Court – Know Your Rights

In South Africa we have Small Claims Courts (SCC)) which offer a quicker and easier way of resolving disputes. If your claim is below R15 000, you may approach the SCC to resolve your dispute. You do not even require the assistance of an attorney to represent you at the SCC.

Anyone may institute a claim in the SCC, except juristic persons such as Companies, Close Corporations and Associations. A person under 18 must be assisted by a parent or legal guardian. With the exception of the State, you may institute a claim against anyone, including Companies, Close Corporations and Associations. It is important to note, however, that claims cannot be instituted against Municipalities/Local Government in the SCC. If your claim exceeds R 15 000 in value, you can institute a claim for a lesser amount to pursue your case in the SCC. The amount may change according to Ministerial determinations from time to time.

STEPS TO FOLLOW:

If you intend instituting a claim in the SCC, as in any legal matter, you must ensure that the opposing party is able to compensate you should the judgment be in your favour. It is futile to institute a claim against another person who is unemployed and who possesses no property.

Step 1:  Letter of demand

It is advisable to commence any legal matter with a written demand to the other party, setting out the facts on which your claim is based and the amount you are seeking. Afford them 14 days from receipt of your letter to settle your claim.  It is advisable to deliver the written demand by hand or registered post.

Step 2:  Go to the clerk of the SCC

After 14 days has lapsed,  go to the clerk of the court with the following documents:

  • A copy of the written letter of demand;
  • Proof that the letter of demand was delivered,  such as a post office slip with a “track and trace” report;
  • Any contract, document or other proof upon which your claim is based;
  • The full name and address (home and business addresses,  if available) and telephone number of the opposing party.

Step 3:  Summons to the opposing party

 The clerk of the court will help you draft the summons.  They will then issue the summons (by stamping it and providing you with a case number) and will also inform you of the date and time that the case will be heard in court.

Step 4:  Deliver the summons

 Take the summons to the Sheriff of the court for service. You,  as the plaintiff, are required to make copies of the summons and letter of demand,  which copies must be served on the opposing party (known as the defendant). The plaintiff must deliver the original summons and Sheriff’s return of service to the clerk of the court as soon as possible before the hearing to ensure it is kept in the court file.

There are certain steps that the defendant may take after receiving the summons, namely,  they may comply with the summons and compensate the plaintiff, they may deliver a written statement (plea) to the clerk of the court and send a copy to the plaintiff or they may issue a counterclaim by delivering a written statement that contains his/her claim against the plaintiff to the clerk of the court.

Step 5: The hearing / trial

After all the above steps have been taken, you will appear at court for the hearing. You must appear in court in person. The court procedures are informal and simple, however, it is advisable that you keep the following in mind when appearing in court:

  • Be respectful towards the commissioner, as well as your opponent;
  • Ensure you have all the relevant documents on which your claim is based;
  • Ensure that all your witnesses are present;
  • Answer the questions of the commissioner and submit your exhibits (document upon which your claim is based);
  • No cross-examination between the parties is allowed. With the commissioner’s permission you may, however,  put a few questions to the opposing party;
  • After the commissioner has heard both parties, he/she may hand down their judgment. The commissioner may also indicate that judgment will be passed in writing at a later stage (judgment reserved).

If judgment is given against you,  the judgment of the court is final, unless some ground for review exists. It is important to abide by the decision of the court.

The above is merely a guideline of some of the most important steps to be taken with regard to instituting a case in the SCC. The SCC is geared to assist litigants through the process of instituting a claim and seeing it through.

However, there is no substitute for quality legal advice.

Contact Matthew Kemp of the Goldberg & de Villiers Litigation Department on 041 501 9801 or matthew@goldlaw.co.za

Beware the Breach – Breach of Contract

The parties to a contract are bound to respect their agreement and to perform all the obligations that it imposes on them. The legal term used to describe this is the Latin phrase pacta sunt servanda. If either party, by an act or omission and without lawful excuse, fails in any way to honour his or her contractual obligations, he or she commits a breach of contract. A breach may take various forms, such as where someone fails to make timeous performance, or where they perform in an incomplete manner.

The natural way for a contract to terminate is by full performance. However, a breach by either party may interfere with its natural life span and result in early termination. In broad terms, the choice for the “innocent party”is between forcing the other party to perform (and therefore keeping the contract alive) or by cancelling the contract on account of the breach. Either way, the “innocent party” will in addition have a claim for damages if, despite performance or cancellation of the contract, he or she is left worse off than he or she would have been had there been no breach. Cancellation is reserved only for those cases where the breach is sufficiently serious and goes to the heart of the contract.

A party who wishes to claim damages for breach of contract must prove that a breach of contract has been committed by the Defendant, that he or she has suffered financial loss, that there is a factual causal link between the breach and the loss and that as a matter of legal causation, the loss is not too remote a consequence of the breach.

It is always important to be aware of all of the terms in any contract you sign. Make sure you negotiate (where possible) in such a manner that you are able to meet your obligations set out in the contract. Most importantly, consult an attorney if you are unsure about the nature and terms of a contract before you sign it. It is much easier to negotiate before you sign something than to litigate later on a something which you have already signed.

For professional legal advice Goldberg & de Villiers on 041 501 9800 .

CIVIL CLAIM: UNLAWFUL ARREST AND DETENTION

We live in a country where crime is rife. We need our police force to be proactive and to sometimes make split-second decisions. However, when the police fail in their duties to conduct adequate investigations into an alleged crime, the consequences can be dire.  A great travesty of justice is done when an innocent person is arrested. It is important for both police officers and ordinary citizens to know their rights and responsibilities when it comes to arrest and detention.

HUMAN RIGHTS

Section 10 of the Constitution states that “everyone has inherent dignity and the right to have their dignity respected and protected.”

Section 12 states that:

“Everyone has the right to freedom and security of the person, which includes the right:

(a)  not to be deprived of freedom arbitrarily or without just cause;

(b)  not to be detained without trial;

Arrest constitutes one of the most drastic infringements on the rights of an individual. (Gellman v Minister of Safety & Security 2008 (1)  SACR 446 (W)).

ARREST

Any arrest without a warrant which is not specifically authorised by law is unlawful.

Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) states:

“Arrest by peace officer without warrant. – (1)   A peace officer may without warrant arrest any person –

(b) whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody…”

Schedule 1 lists the offences in respect of which a police officer may arrest a person without a warrant.

The main purpose of an arrest is to secure the attendance of the accused at court.

In order to provide guidance to police officers and other role players with regard to the right of police officers to arrest and detain certain persons in terms of section 40(1)(b) of the CPA, the Minister has issued Standing Order ((G) 341 (The “SOG 341”) dealing with arrest and the treatment of arrested persons.

The application and scope of the SOG 341 has come before the Constitutional Court in Minister of Safety 7 Security v A Van Niekerk (2007)  ZACC 15. Sachs J held that the SOG 341 constitutes nuanced guidelines given by the Minister for the benefit of police officers and courts to interpret where an arrest would be deemed to be lawful.

The Constitutional Court made it clear in the Van Niekerk case that arrest is a drastic measure which should not be used if there are other effective means of ensuring that an alleged offender could be brought to court. An arresting officer must prefer to secure the accused’s presence at court by way of Summons. If the accused is someone who the arresting officer believes will abscond, or attempt to hamper the investigation, then they should obtain a warrant, or if they cannot, and the matter is urgent, then, and only then, if they have reasonable suspicion that the accused has committed a Schedule 1 offence, should they arrest the accused.

The arresting officer’s  suspicion must be reasonable. The test as to whether the arresting officer’s  suspicion is reasonable must be assessed objectively (S v Nel and Another 1980 (4)  SA 28 (E)  at 33H).

In Ramakulukusha v Commander, Venda National Force 1989 (2)  SA 813 (V) at 836G to 837B it was held that in order to ascertain whether a suspicion that a schedule 1 offence has been committed is reasonable, there must obviously be an investigation into the essentials relevant to each particular offence.

In the case of Duncan v Minister of Law and Order 1986 (2) SA 805 (A) the court put the dilemma faced by arresting officers aptly when it stated:

“The power of arrest without a warrant is a valuable means of protecting the community. It should not be rendered impotent by judicial encrustations not intended by the legislature. On the other hand the law is jealous of the liberty of the subject and the police in exercising this power must be anxious to avoid mistaking the innocent for the guilty. They often have to act on the spur of the moment with scant time to reflect, but they should keep an open mind and take notice of every relevant circumstance pointing either to innocence or to guilt.”

In the case of Mabona & Another v Minister of Law & Order (1988)  3 All SA 408 (SE) the court had to decide whether the suspicion of the arresting officers to arrest the 2 Plaintiffs based on the word of a secret informer was reasonable. The court, in discussing how to assess whether a reasonable suspicion exists stated at pages 410 and 411:

“Would a reasonable man in the second defendant’s position and possessed of the same information have considered that there were good and sufficient grounds for suspecting that the plaintiffs were guilty of conspiracy to commit robbery or possession of stolen property knowing it to have been stolen?  It seems to me that in evaluating his information a reasonable man would bear in mind that the section authorises drastic police action. It authorises an arrest on the strength of a suspicion and without the need to swear out a warrant, ie something which otherwise would be an invasion of private rights and personal liberty.

The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked. It is only after an examination of this kind that he will allow himself to entertain a suspicion which will justify an arrest. This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. The section requires suspicion but not certainty. However, the suspicion must be based upon solid grounds. Otherwise, it will be flighty or arbitrary, and not a reasonable suspicion.”

An arresting officer’s  suspicion must also be his own. He cannot rely on the suspicion of somebody else. See Ralekwa v Minister of Safety and Security 2004 (2) SA 342 (T).

In the case of Gellman v Minister of Safety & Security 2008 (1)  SACR 446 (W) the court noted:

“If no exigent circumstances exist, they should preferably seek corroborative evidence before making an arrest. An arrest is not a substitute for good police work.

In Minister of Safety and Security v Sekhoto (131/10) (2010) ZASCA the Supreme Court of Appeal did to some extent curb the approach adopted by the High Court in assessing whether an arrest is justified when a Summons could have been used. However, the court stated that where the case is somewhat trivial an arrest would clearly be irrational.

The court in Sekhoto went on to state the following:

“What I have said must not be understood as conveying approval of the use of arrest where there is no urgency and the person to be charged has a fixed and known address; in such cases, it is generally desirable that a summons be used.”

The court did however take the view that an arrest is not necessarily unlawful where the arresting officer prefers an arrest where Summons would have been more appropriate. However, it is submitted that the judgment in no way eliminates the duty on an arresting officer to ensure that he has satisfied himself as to the facts before him in order to form a reasonable suspicion before effecting an arrest.

For more information and quality legal advice contact the Goldberg & de Villiers Litigation Department on 041 501 9800.

 

5 QUESTIONS TO AVOID ASKING IN INTERVIEWS

The rule of thumb is that if the question is job related, it should be appropriate to be asked and answered.The Employment Equity Act sets out at Section 9 in respect of the provision of unfair discrimination, medical testing and physic metric testing, that an applicant for employment will be considered as an employee. The effect of this is that employers must be mindful of the questions asked in interviews as the questions (although even asked in innocence) could create the perception of discrimination, which could result in unnecessary litigation.

For this reason, it is suggested that the following questions be avoided:

Do you have plans for having children?

This could be perceived as discriminating against an applicant on the grounds of pregnancy or family responsibility.   It would be better to phrase the question as follows:   Do you have responsibilities other than work which would or could prevent you from performing specific job requirements such as traveling?

What religion are you?

Whilst this could be a legitimate question requiring an answer given the shift work responsibilities it could be perceived as discriminatory in terms of religion.   It would be better to phrase the question as follows:   The position requires shift work /working over weekends, will you be able to work the required schedule?”

Who do you support politically?

There is no need for such a question and this question will be considered discriminatory in respect of “political opinion”.   There is no better manner in which to phrase such a question and it is to be avoided.

What is your marital status?

Whilst this does not seem to be a discriminatory question and is usually asked to break the ice, it could be perceived as discriminatory.   Should you wish to find out more about a candidate, it would be best to ask an open ended question in which the candidate volunteers the information, such as “tell us about yourself?”.

Please list any conditions or diseases which you were treated for in the last three years?

  • Whilst this may be a necessary question in order to determine the suitability of the candidate and his or her ability to attend at work, the manner in which it is phrased lends itself to discrimination.
  • It would be better to phrase the question as follows:  This job is physically demanding, can you manage all the job duties efficiently?”

Ensuring that your interview is in line with the Employment Equity Act and does not constitute discrimination, is imperative in ensuring that there is no unnecessary litigation pursued by an unsuccessful candidate.

For more information and assistance with training or advice, please contact TraceyMouton on 041 501 9832 or traceym@goldlaw.co.za .

First aid boxes in the workplace

One of the common-law duties of an employer is a safe working environment.

Regulation 3 (1) ; (2) and (3) of the General Safety Regulations to the Occupational Health and Safety Act (Act 85 of 1993) prescribes requirements concerning first aid boxes.

In summary the following must be noted:

Where an employer employs more than 5 employers, a first aid box is to be provided.

The first aid box is to be placed near to the employees workplace and be available and accessible to ensure adequate treatment of injured employees.

The employer has a discretion in determining the number of first aid boxes, however in exercising that discretion, the following is to be taken into account:

�          the type of injuries that are likely to occur at a workplace,

�          the nature of the activities performed and

�          the number of employees employed at the wotkplace.

The following list is the minimum contents of a First Aid Box as per the regulations:

In the case of shops and offices, the quantities stated under items 1, 8, 9, 10, 14, 15, 17, and 18 may be reduced by half.

Item 1 Wound cleaner / antiseptic (100ml)
Item 2 Swabs for cleaning wounds
Item 3 Cotton wool for padding (100g)
Item 4 Sterile gauze (minimum quantity 10)
Item 5 1 pair of forceps (for splinters)
Item 6 1 pair of scissors (minimum size 100mm)
Item 7 1 set of safety pins
Item 8 4 triangular bandages
Item 9 4 roller bandages (75mm x 5m)
Item 10 4 roller bandages (100mm x 5m)
Item 11 1 roll of elastic adhesive (25mm x 3m)
Item 12 1 Non-allergenic adhesive strip (25mm x 3m)
Item 13 1 Packet of adhesive dressing strips (minimum quantity 10 assorted sizes)
Item 14 4 First aid dressing (75mm x 100mm)
Item 15 4 First aid dressings (150mm x 200mm)
Item 16 2 Straight splints
Item 17 2 Pairs large and 2 pairs medium disposable latex gloves
Item 18 2 CPR mouth pieces or similar devices

The R1m Buffalo That Died: A Lesson in Passing of Risk

We buy and sell things every day, and no doubt most of us assume that it is only when we become the owner that we take the risk of our purchase being damaged or destroyed.

Not always – in our law, passing of ownership and passing of risk are two different concepts, and although in our day-to-day lives they are normally simultaneous, sometimes they aren’t.

What happens then?

The general rule in our law – unless the parties have agreed otherwise – is this –

  1. A buyer becomes the owner of a movable only when it is “delivered” to him/her (be careful here – “delivery” is a much more complicated concept in law than you might think).
  2. Risk however passes to the buyer on conclusion of the contract of sale; in other words, you could buy something, and if it is stolen or destroyed before you take ownership, you could end up losing both it and the purchase price. There are many provisos and exceptions to this rule (such as when the seller causes the loss) but the legal principles are complex and all in all it’s a minefield for the unwary.

A recent SCA (Supreme Court of Appeal) decision illustrates two particular dangers.

A buffalo dies – whose loss?

  • A game farmer sold a bull buffalo to another game farmer.
  • Before delivery to the buyer, the buffalo had to be tested for disease, which meant darting it to draw a blood sample.
  • The darting itself went well, but the buffalo naturally enough made a run for it and could not be found in time to prevent it from lying down and suffocating.
  • The seller sued the buyer for R1.14m, his case being this –
    • Whilst on top of the truck in which the buffalo had been transported, the buyer decided then and there he wanted it, and the parties agreed verbally on a sale at R1m + vat.
    • The buyer, said the seller, also specifically agreed to assume the risk of death or injury arising from the darting and sedation.
    • The death resulted from the darting operation.
  • The buyer at first denied everything, but, by the time the parties ended up in the Supreme Court of Appeal, he had conceded all three points. He argued however that the seller had to deliver the buffalo before claiming payment, that it was up to the seller to prove that his conduct hadn’t caused the buffalo’s death, and that the seller’s inability to deliver (“impossibility of performance” in legal speak) was self-created.
  • Having resolved a number of factual disputes in favour of the seller, and holding that the buyer’s specific contractual assumption of risk arising from the darting operation made the question of “self-created impossibility of performance” irrelevant, the Court held that it is the buyer who must suffer the loss.
  • The end result therefore – the buyer is down one buffalo, R1.14m, and legal costs (which, after three bouts in senior courts, will be substantial).

Verbal contracts, high risk events, and deep pockets

It boils down to this –

  1. Relying on a verbal sale agreement is a recipe for disaster – dispute, delay, and the costs and frustrations of litigation. Rather have your lawyer record in a written contract, in the clearest possible terms, exactly what you have agreed to in regard to the passing of ownership and the passing of risk.
  2. If you accept the danger of loss from a “high risk event” – such as sedating R1m worth of wild buffalo – you’d better have deep pockets.

For advice, contact us on 041 501 9800.

 

 

 

 

PROPERTY SELLERS: DON’T PAY “FUTURE RATES”

 

“Cause they told me everybody’s got to pay their dues
And I explained that I had overpaid them” (Sixto Rodriguez in ‘Cause’)

Before you as seller can transfer your property to the buyer, you must have a clearance certificate from your local municipality confirming that you have paid in full all rates and taxes, services etc due to it on the property.

What happens though when the municipality refuses to issue the clearance certificate until you have paid not only rates currently due, but also future rates i.e. rates payable by the buyer after transfer as new registered owner?  If you are forced to pay, you will be left with a claim against the buyer and that could well mean dispute and delay.

But now here’s good news for you from a recent SCA (Supreme Court of Appeal) decision.

At issue – a R2.28m rates bill paid under protest

  • A municipality presented a seller with a rates account of R2,281,014-68 in terms of its rates policy which required it to recover all rates due for the seller’s “remaining financial year”.
  • The seller said it only owed R1,2m but it was forced to pay – with reluctance and “under protest” – the whole amount due in order to get the clearance certificate. It then sued the municipality for return of the R1,066,532 “overpayment”.
  • On its interpretation of the relevant legislation, the Court held that the municipality’s policy on future rates was inconsistent with the Rates Act, and therefore void. The seller had therefore overpaid, and the municipality must repay it, together with interest and costs.

For advice, phone us on 041 501 9800.

MAKING MONEY WITH AIRBNB? TAX AND OTHER ISSUES.

Airbnb is an increasingly popular and lucrative way for residential property owners to earn extra income from short-term rentals of spare rooms, holiday houses, apartments and the like.

Bear in mind these 3 factors:

  1. You need to provide for taxes. SARS has recently confirmed that your Airbnb earnings (after deduction of allowable expenses) are taxable and must be included in your income tax returns. You will also have to register for VAT if your rental income exceeds R1m per year.
  2. You must comply with the “permitted uses” applying to your property under your local municipality’s zoning regulations.
  3. If you are in a community scheme (Sectional Title or Home Owners Association) check whether the scheme’s rules and regulations allow short-term rentals of this nature, and if so what restrictions apply. Remember you are responsible for any breaches of the rules and for any unlawful or bad behaviour by your tenants.

For more information and advice, contact us on 041 501 9800.

 

CAN A PERSON BE DISMISSED WHO HAS NOT STARTED WORKING YET?

A question arises as to whether a person who has concluded a contract of employment with an employer enjoys the status of an employee prior to him or her actually commencing work.  Following from this, the question arises as to whether such a person may be dismissed in terms of the Labour Relations Act if his or her contract is terminated prior to the commencement of work.

In the Appeal Court case of WYETH SA (PTY) LTD vs MANQELE it was held that the term employee as defined in Section 213 of the LRA and the requirement that a person “work” for another to be an employee, extends to a person who is contracted to work.  As such, a dismissal can occur between the period from which an individual accepts an offer of employment to commence at a future date and the future date of employment.

For professional legal advice, contact Tracey Mouton on 041 501 9800.