DAGGA – JUST HOW LEGAL IS IT NOW?

 

 

The media has been awash with reports (sometimes conflicting, often vague) of what the recent Constitutional Court ruling actually means in practice.

Whether you agree with the ruling or not, and whether or not you personally have ever had (or intend to have) anything to do with cannabis/marijuana/weed/dagga, we all need to be aware of the implications.

Here’s some food for thought –

  • Err on the side of caution: Parliament has two years to change the relevant Acts to cure their constitutional defects. Until it does so, there will be many grey areas and your best course of action is always going to be to err on the side of caution. You really don’t want to be funding a test case in court, particularly if your job or your clean criminal record is at stake.
  • The limits of the ruling: The Court’s decision has not comprehensively “legalised dagga”. What it has done is to provide that, until the Acts are amended, it could not be a criminal offence for an adult person –

o          To use or be in possession of cannabis in private for his or her personal consumption in private; and

o          To cultivate cannabis in a private place for his or her personal consumption in private.

Any form of supply or purchase, even in private, and any possession or use by a minor (under 18), anywhere, would still put you at risk of a criminal record and heavy penalties.

  • The danger of arrest: As the Court put it, if a police officer finds a person in possession of cannabis and thinks it is not for personal consumption, then “He or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption.  If, having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person.  Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption.” Similar considerations will, said the Court, apply to questions around cultivation.

There is also no clarity on what will be considered to be a “private place” other than the Court’s comment that there are places other than “a person’s home or a private dwelling” where the right to privacy would apply.

The bottom line – you still risk arrest on suspicion of having or growing more dagga than a police officer considers reasonable for your personal consumption, or in a place that you consider “private” but that a police officer doesn’t.

  • Driving under the influence: Our law provides that: “No person shall on a public road … drive a vehicle or occupy the driver’s seat of a motor vehicle of which the engine is running … while under the influence of intoxicating liquor or a drug having narcotic effect”. Effective testing by police if you are pulled over is another matter entirely, but does anyone really want to risk a stay in a police cell while a test is arranged?
  • In the workplace: Since the court’s ruling applies only to “private places” it seems unlikely that employees could ever get away with use or possession in a standard office situation. But what about an employee pitching for work whilst still under the influence? Practical issues of proof aside, it is probably an extremely bad idea. Employees have a general duty to perform their functions properly and doing anything to compromise that probably puts you at risk of at the very least a disciplinary warning. Of course anyone in a job where 100% sobriety is a non-negotiable necessity (think heavy machinery operators, surgeons, pilots and the like) risks a lot more than just a warning.

Employers: a final note

Having a properly-drawn “sobriety policy” in place will reduce the risk of confusion and dispute in the workplace. If you have a policy in place already, ask your lawyer to check that it adequately covers you in light of these new developments.

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For more information contact Tracey Mouton of Goldberg & de Villiers Inc on 041 501 9800.

WHAT TO DO WHEN SOMEONE DIES

 

The inevitability of death doesn’t detract from the shock and distress that it brings to the grieving survivors, and much as we don’t like to plan for these things it will help at least a little to know what to do in practice after a death.

The formalities

There is unfortunately a lot of red tape involved, but your family doctor, undertaker and spiritual advisor (if you have one) will help you with or attend to many of the formalities and practicalities –

Firstly, you will need a Notice of Death which sets out the identity of the deceased as well as the date, time and cause of death. If the deceased died at home, call in your family doctor for help. The deceased will be transported to a mortuary or funeral home and an autopsy may be necessary if your doctor is unable to certify the cause of death as “natural causes” (generally speaking the doctor will need to have seen the deceased no more than 6 months prior to death to be satisfied in this regard). In cases of death from “unnatural causes” (accidents or suspicion of foul play for example) you need to call in the police who will organise an autopsy at a State Mortuary.

A Death Report will then be issued, together with a Burial Order. These are issued by persons authorised to do so by Home Affairs (the list includes traditional leaders, police officers and authorised undertakers). Note that cremation requires confirmation from a second doctor.

In due course the Department of Home Affairs will issue a Death Certificate after receipt of the Notice of Death and the Death Report. That can take a few weeks but you can get an abridged death certificate free of charge immediately. The executor of the deceased’s estate will need the Death Certificate to begin the process of winding up the estate and you or the executor will need certified copies for claims on life policies etc.

The death must also be reported within 14 days to the Master of the High Court.

Practical issues

  • Make a list of family members and close friends who you need to contact about the death, and don’t be afraid to ask for help and support, this is a time when everyone will want to be there for you.
  • If the deceased lived alone prioritise things like pets and livestock, home security and safety, security of firearms, electricity top-ups, perishables in fridges and so on.
  • If the deceased was an organ donor, let the applicable organisation know as soon as possible – time is naturally of the essence.
  • Find and secure the deceased’s ID document, passport/s, important papers like title deeds etc as soon as possible.
  • Find the deceased’s will (hopefully he/she will have left one) and contact the nominated executor who will give you a list of things you need to do and paperwork you need to get together. If you are nominated as executor, contact your attorney to help you with the winding-up process.
  • If there was no will, again contact your attorney for help in reporting the death to the Master of the High Court. You will need to lodge an inventory of assets with the Master, who will normally appoint a formal executor only where the value of the estate exceeds R250,000.
  • Find out if the deceased had funeral insurance and if so what is required to claim on it. There is no legal requirement for a funeral or memorial service to be held but generally be guided by the deceased’s wishes if you know or can find out what they were. Also naturally follow any religious beliefs and requirements. A funeral home will help with all the funeral arrangements.

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For more information and peace of mind, contact Goldberg & de Villiers Inc on 041 501 9800.

SELLING YOUR HOUSE: DISCLOSING DEFECTS

 

“Honesty is the best policy” (Benjamin Franklin)

A recent High Court decision again confirms that when it comes to selling your house, honesty is indeed the best policy.

Specifically, disclose all defects you know of to potential buyers, or risk expensive litigation and damages claims.

Defects and Defences

The buyers of a house, who had paid R2.3m for it (the seller having reduced her original asking price from R3.6m to get a sale), sued the seller for damages in respect of various defects. These, they said, had only come to light after transfer.

The Magistrates Court awarded them R92,352-80 in damages, and the High Court upheld that award on appeal. The seller must also pay legal costs, which will no doubt be substantial. Her loss is a practical lesson in the dangers of trying to hide defects from potential buyers.

The seller did not dispute the existence of the defects complained of, nor did she claim to have shown or disclosed them to the buyers, but she did raise various legal defences to the buyers’ claims –

  • Leaking roofs, defective windows, broken mirrors, defective pool equipment and missing keys: The seller argued that all of these defects were “patent” (easily identified on inspection) rather than “latent” (hidden or non-obvious). The buyers, said the seller, had an opportunity to thoroughly inspect the premises but had chosen not to do so and therefore had no claim. The Court however found that there was no evidence to corroborate this – there being for example no evidence that the buyers had inspected the house on a rainy day when the leaks would have been detectable.
  • The electric fence: In regard to latent defects such as the defective electric fence, the seller claimed protection from a voetstoots clause in the sale agreement. But our law is that a seller has a general duty to deliver the thing sold to the buyer without defects, and whilst a seller should always try to guard against liability for latent defects with a “voetstoots” (“as is” or “without any warranty”) clause, it offers no protection where the seller has acted fraudulently. Thus a buyer can sidestep a voetstoots clause by proving that the seller “at the time of the conclusion of the contract was aware of the existence of the latent defect in the [house] sold and deliberately concealed the existence of the defect to the purchaser or refrained from informing the purchaser of its existence.” On the facts of this case, held the Court, the seller had deliberately concealed defects such as the defective electric fence energiser.
  • The pool filter and cleaner: The sale agreement included a specific one-month warranty in regard to fixtures and fittings, which included the pool equipment. These, said the seller, had been in normal working order at the time of the sale. But the evidence showed that defects in them, resulting from years of wear and tear and requiring complete replacement, had in fact been discovered within the one month period after the sale. The seller had to honour the warranty.
  • The electrical compliance certificate: The certificate required by the sale agreement and provided by the seller was found after transfer to have been invalid. The house was accordingly not electrically compliant and the buyers could recover their costs of fixing the defects.

A note for sellers

Don’t fall into the trap of assuming that buyers will find defects for themselves, or of believing that a voetstoots clause will automatically protect you from liability.  Avoid all doubt by thoroughly inspecting your property, annex to the sale agreement a written list of all defects you find or know about, then get the buyer to sign it in acknowledgment. There is no substitute for proper legal advice here.

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Before selling or buying a property, contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800.

 

THE IMPORTANCE OF MAINTAINING RECORDS FOR OVERTIME

 

Section 76 of the Basic Conditions of Employment Act requires the employer to prove the accuracy and validity of any record that it maintains and, if it has failed to maintain a record, it must prove that it has complied with the Act.

In Venter vs Symington & De Kok the Court pointed out that the onus of proving that overtime was worked still rests on the employee, but once the employee is able to show on a balance of probabilities that she did work overtime on certain occasions, the burden of proving compliance with the BCEA shifts to the employer.

The Court accepted that instructions that particular work had to be finished before the employee could leave for the day was to be construed as an instruction to work overtime, and accordingly payment was thus due to the employee.

This case is amongst many that highlight the importance of keeping records which comply with the BCEA.

For advice in relation to the Basic Conditions of Employment Act contact Goldberg & De Villiers Inc., Tracey Mouton on (041) 501 9801 or e-mail: traceym@goldlaw.co.za.

DRUNK DRIVING ARREST: DAMAGES FOR SEXUAL ASSAULT IN CELL

 

Here’s one more reason to never ever allow yourself or anyone else to drive when over the legal limit (for non-professional drivers, a breath alcohol content of 0.24mg per 1,000ml or a blood alcohol limit of 0.05g per 100ml).

If you are caught by the police (statistically, a regular offender will be caught sooner or later – there are 75,000 such arrests in SA every year) your life could be destroyed even before you see the inside of a courtroom.

Of course the police are duty bound to protect your fundamental rights whilst in their custody, but we’ve all heard the many nightmare stories of abuse and assault in police cells. A recent Supreme Court of Appeal decision dealt with one such case.

Gang raped in the cells

  • A family man was arrested and charged with a number of very serious offences – driving under the influence of alcohol, reckless and negligent driving and failure to stop after an accident. This after, at 2.30 a.m. on a Saturday morning, he allegedly drove into a house’s fence/wall and then attempted to drive away from the scene, leaving his injured passengers behind.
  • After charging him, senior police officers authorised the driver’s release from custody on R500 bail because he had a fixed home address and employment; was married with a 5 year-old child; had no previous convictions and no outstanding warrants of arrest; was not on bail on another case; and had not committed an offence while on bail.
  • Before his release however he was transferred to another police station, and when his wife arrived to pay the bail she was laughed at and told no bail had been allowed.
  • The driver accordingly spent the rest of the weekend in a police cell, where he was attacked and raped by an unknown number of cellmates, losing consciousness during the assault and scared to report the attack for fear of reprisals. He was unable to prove his allegations of a lack of cell inspections and of police failure to transfer him to another cell after he reported being warned of an impending attack on him, but there was no denial by the police of the sexual assault itself.
  • In court the driver was released on bail and the charges against him were ultimately withdrawn.
  • He then sued for damages, and as in every civil liability claim, needed to prove wrongful conduct by the police that had caused him harm, plus some form of fault or blameworthiness (like intention or negligence).
  • In the end result the Court ordered the police to pay damages to the driver on the basis that –

o             The conduct of the police and its wrongfulness were not in dispute,

o             The police had been negligent both in failing to release him on bail and in failing to separate him from violent offenders also in custody, and

o             There was a “direct and probable chain of causation” between those failures and the attack.

Police liable; but what consolation damages?

So the driver has been vindicated but the Court’s award to him of R200,000 in “general damages” is unlikely to go far in consoling him for the ordeal’s impact on his life. Our courts are deliberately conservative in assessing general damages, but the clinical psychologist’s evidence as to the serious psychological impact on the driver of his experience (as reported in the judgement) makes for harrowing reading.

Intense trauma, Post-Traumatic Stress Disorder, ongoing treatment with anti-depressants (six years down the line), deep humiliation, intense fear of amongst other things contracting HIV, sexual problems, a broken marriage, problems relating to his child, poor self-image, personality changes, flashbacks – the list goes on. Ultimately problems at work (including being unable to work in teams and being mocked by his colleagues) led to his employment being terminated, after which he attempted suicide and spent five days in a hospital ICU.

Of course none of this means that we should supinely accept vindictiveness or negligence from those appointed to serve and protect us. Media reports suggest that large claims against the police (and other government services) are regularly settled out of court for millions. Just remember that legal advice as soon as possible after the incident is essential!

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For professional legal advice, contact Goldberg & de Villiers Inc on 041 5019800.

BUYING YOUR FIRST HOUSE – AN ACTION PLAN

      “Buy land – they’ve stopped making it” (Mark Twain)

So you’ve decided to buy your first house – exciting! There’s nothing like owning and living in your very own dream house, and if you choose wisely your home could well be one of your most important investments ever.

Get started with these tips

First, understand how much cash you will need

Make a list of all the costs you need to plan for (there are plenty of convenient online calculators to help you figure out what your transfer and bond costs are going to be so Google for one that suits you) –

  • Deposit: Unless you pay the whole purchase price in cash, you will need to raise a bond. You may qualify for a 100% bond, otherwise be ready to pay at least 5% – 10% of the price as a cash deposit. Of course there may be benefit in paying more if you can afford it.
  • Bond registration costs: The bank’s attorneys will register your bond and you will need to pay them the registration costs. The bank will also charge you a bank initiation fee.
  • Transfer costs: Standard procedure (unless your sale agreement provides otherwise) is for you to pay the transfer costs, even though it is usually the seller who chooses the conveyancing attorney.
  • Transfer duty: This government tax is payable unless there’s VAT on the sale, and the sale agreement will almost certainly provide for you to pay it. No duty is payable on a property valued up to R900,000 and a sliding scale applies to houses above that threshold.
  • Associated costs: Make a list – moving, redecorating, furnishing, Internet connections and so on. Don’t forget this step, these costs can add up alarmingly!

So what’s your price range?

You now have your figure for one-off costs, but before you finalise your budget make provision also for all your new ongoing costs as they will all affect long-term affordability –

  • Recurring and monthly costs: Rates/taxes/levies, homeowner’s insurance, water, electricity and so on. Provide also for both short- and long-term maintenance costs for both home and garden.
  • Your bond repayments: This is the crunch – will you be happy with the lifestyle you can afford after paying your bond every month? When you first apply for a bond shop around for the best interest rate and – this is vital – be absolutely sure that you will always be able to afford the monthly payments, even when (not if) interest rates start rising again.

Get a bank pre-approval here – with today’s restrictions on credit grantors when it comes to responsible lending practices, it will help you gauge affordability. And as a bonus, it gives you a great negotiating tool when you move on to the offer stage!

The end result – you have your budget, that gives you your price range, and you can move on to…

House hunting

Lots of questions to ask yourself here of course –

  • Location, location, location: What area/s will you concentrate on? Where do you want to live? What sort of lifestyle are you after? What amenities do you want close by? Research the area – what are average selling prices in the suburb and is your budget up to it? Do houses in the area have a history of good value growth? What are crime levels like?
  • Searching: With your price range and target area in mind, the “thrill of the hunt” is at last upon you! Online searches are increasingly popular but choose whichever channel or channels you are comfortable with.
  • If buying in a community scheme: Check what Rules and Regulations you are letting yourself in for – you will be held to them. Make sure that the Home Owners Association or Body Corporate’s finances are sound (ask for audited financials and management accounts). Ask about any special levies or other planned expenditure on the horizon (get it in writing).
  • Plans, defects and the rest: Ask for copies of approved building plans (check for any unlawful structures or deviations from plan), look for and ask about defects like leaking roofs, problem foundations etc – consider getting a full professional report unless you are very sure of your own abilities in this regard.

Approach your choosing and purchasing decision as though it’s the most important financial decision you will ever make (it may well be).

Making an offer, and the legal bits

So now you’re ready to make your offer on a house. Excitement mounts – will the seller accept? Or perhaps counter-offer? You can’t wait to find out. You are presented with a Deed of Sale, a pen and a cheerful “just sign here, we’ll do the rest”.

Hold on a second!

Take no chances here. Before you sign anything, have your lawyer check the paperwork for you, with a Deeds Office search for anything that may affect your decision-making such as restrictive title deed conditions, servitudes (giving other people rights over your property) etc, etc.

Remember also that with property sales what counts is what’s in writing so tell your lawyer about any verbal undertakings or disclosures given to you.

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

GROUNDBREAKING RULING ON MUSLIM MARRIAGES

On 31 August 2018 a full bench of the Western Cape High Court ordered that the State is obliged to implement legislation to recognise Muslim marriages and the consequences thereof within 24 months.

Prior to the judgement, a draft bill to legally recognise Muslim marriages was introduced for public comment, but according to the Minister of Justice the bill was widely opposed as being inconsistent with Sharia law and “unIslamic”.

The Women’s Legal Centre Trust, which said it was aimed at providing Muslim women and their children with legal protection upon divorce, approached the court for an order against the President of South Africa and others to provide legislation to govern Muslim marriages and, in particular, to provide legal protection to the women and their children in relation to divorce and inheritance.

The court declared that the president of the country and other respondents had failed in their constitutional obligation and that the state is obliged to respect, protect and promote the rights to dignity, equality, religion, the best interests of the child and access to courts by enacting legislation to recognise Sharia law marriages. The state was given 24 months to rectify this failure, failing which all marriages validly concluded under Sharia law would be dissolved according to the Divorce Act.

For more information, contact Goldberg & de Villiers Inc on 041 501 9800

 

DO YOU NEED A WILL?

         “A man who dies without a will has lawyers for his heirs” (Anon)

It’s natural not to want to make plans for our own mortality, but we owe it to ourselves and our loved ones to do exactly that, and to do it without delay. Why?

  1. Sooner or later we all die. No one knows exactly when.
  2. If you don’t make a will you forfeit your right (and duty) to ensure that your loved ones are properly catered for after your death.
  3. A professionally-drawn will also greatly reduce the risk of your grieving family having to deal with uncertainty as to your wishes, bitter infighting and expensive litigation.

What happens if you don’t leave a valid will?

If you leave no valid will when you die, our “law of intestacy” applies, with the following consequences –

  • Your assets are distributed according to law, not according to your wishes. That could leave your family very vulnerable – see below.
  • Your deceased estate is administered by an executor in whose appointment you have had no say. Not ideal – rather protect your loved ones by choosing in your will an executor you can trust to act with integrity and speed.
  • Equally, you have no say in who is to be appointed guardian of your minor children, nor trustee of a trust to protect their inheritances (particularly important if you are the last-surviving parent).
  • Your childrens’ inheritances will sit in the statutory Guardians Fund until they turn 18 – very much last prize considering past allegations of fraud, corruption and chaotic administration in the Fund.

Who gets what without a will?

Note: The persistent myth that the state will grab all your worldly wealth if you die intestate isn’t true except where you leave absolutely no blood relations behind. If you’re in that unlikely situation you may want to skip down now to the “A final thought – leave the world a better place” section below.

Where you are survived by at least one relative, your net assets (everything you own, less your debts and the costs of winding up your estate) are divided up between your heirs in an order of preference (a) dictated by law and (b) dependent on how you are related to your heirs.

Firstly, if your spouse and/or your descendants (children, grandchildren etc) survive you, they inherit everything according to set rules (see the “Beware: You could leave your spouse struggling to survive” section below for more).

Things get more complicated if you leave behind neither spouse nor descendants. Your parents, brothers/sisters and other relations all potentially have a look-in. If you’re interested in the details, the DOJ (Department of Justice and Constitutional Development) provides a full breakdown (with some useful practical examples) here.

The article also covers specifics applying to polygamous marriages, marriages in community of property, adopted and illegitimate children – but as always there is no substitute for proper legal advice on your specific situation.

Beware: You could leave your spouse struggling to survive

If you find it difficult to stop procrastinating on making a will, here’s a thought that may help.

Without a will, if your spouse survives you together with children (or other descendants), he or she will, regardless of age or circumstances, inherit only the greater of R250,000 or a “child’s share”. In a nutshell, your spouse will have to split your estate with your descendants and you could be sentencing him or her to a life of financial hardship, all for want of a simple will.

Similarly you may want to make special provision for any of your descendants who are particularly vulnerable – perhaps unable to fend for themselves through illness or handicap.

It boils down to this – make your will now so that it is you who decides who gets what in your particular family circumstances.

A final thought – leave the world a better place

A will isn’t just an essential step in securing your family’s future; it also gives you the freedom to support your favourite good cause with a bequest. Many of our most worthy charities rely heavily on bequests, and you really will be leaving the world a better place for your generosity.

As a bonus, with charitable bequests the Taxman comes to the party, and your heirs could benefit from substantial estate duty and capital gains tax breaks.

It’s easy – choose your charity, decide on the type and amount of legacy you want to leave, and have your lawyer include it in your will.

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For more information and professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.

MAY AN EMPLOYER DEDUCT MONIES FROM ITS EMPLOYEES FOR NEGLIGENCE?

In terms of Section 34 of the Basic Conditions of Employment Act (BCEA), an employee may make a deduction should such deduction need to be made to reimburse an employee for loss or damages.

For such a deduction to be made, the following criteria are to be met:

  1. The loss or damage should have occurred in the course of employment and was due to the fault of the employee;
  1. The employer followed fair procedure and gave the employee a reasonable opportunity to show why the deductions should not be made;
  1. The total amount of the “debt” is not to exceed the actual amount of the loss or damage; and
  1. The total deductions from the employee’s remuneration in terms of the above may not exceed one quarter of the employee’s remuneration in money.

It is very important when a chairperson is considering charges of negligence that he/she applies his/her mind in relation to the reimbursement by the employee of the loss suffered.

Tracey Mouton, Director and head of the Employment and Labour Law Department at Goldberg & de Villiers Inc will expertly assist you in handling such an enquiry to ensure that your Company is appropriately safeguarded. Contact Tracey on  traceym@goldlaw.co.za or Tel: 041 501 9818.

www.goldbergdevilliers.co.za

 

 

 

FATHER HELD TO R1M WHATSAPP PROMISE

In today’s fast paced environment we are constantly being warned to be careful of what we post or place on social media platforms. These warnings are not to be taken lightly as per the experience of a Limpopo father who was recently ordered by a court to keep to his promise made on WhatsApp.

The father in question, who received a Lotto payout of R20 million, promised each of his children R1 million via a WhatsApp message. Whilst it is not certain if all of his children took him up on the promise, the father’s former partner and mother of a teenage daughter insisted that the father pay out the daughter her share.

The father refused and the matter was taken to court where the Limpopo High Court held that a promise is a promise, even if made via WhatsApp message. The father was therefore ordered to pay up.

Let this court judgement be a harsh reminder to only post that which you are comfortable being bound to. Social media often creates the impression of freedom of speech without accountability, but this is clearly not the case and caution must be exercised whenever making use of such platforms.

For professional legal guidance, contact Goldberg & de Villiers Inc. on 041 – 501 9800.

[Article by Sandy Scholtz]