EXPIRED FIREARM LICENCES: HIGH COURT TO THE RESCUE

“There is no question that firearms are hazardous objects and that possession and ownership must be strictly controlled. A failure to comply with the Act exposes the public to potential harm, especially in a society like ours where violence is rife.” (Extract from judgment below)

Whilst our law quite correctly treats unlawful possession of a firearm as a most serious offence – you could go to prison for 15 years if convicted – law-abiding citizens who hold valid firearm licences face a major problem if for whatever reason they fail to renew them in time.

To set the scene, the Firearms Act provides that all licences are valid for a limited period only (10 years for hunting licences and 5 years for self-defence) and you must apply for renewal at least 90 days before expiry.  If you drop the ball on that one, you have a major problem …

The 90 day guillotine: High Court to the rescue

“The difficulty that arises, and which causes confusion” held the High Court recently when asked to intervene on behalf of firearm owners “is that, if a person fails to apply for a renewal at least 90 days before expiry there is no provision in the Act that permits one, after the guillotine has dropped, to bring oneself back within the parameters of the law.  This then leads to the result that one is in unlawful possession of a firearm, with no means to rectify the position…”.

Worse, there is no way to surrender the firearm to the police without risking prosecution, nor any way to get value for the surrendered firearm – clearly an untenable position.

Having analysed the purpose and effect of the Act, and in particular of the sections dealing with renewal of licences and the consequences of not doing so in time, the Court declared those sections unconstitutional and gave Parliament 18 months to amend the Act so as to ensure constitutional compliance.

What happens now if your licence has already expired?

This must now go to the Constitutional Court for confirmation, but fear not, you are covered in the interim.  The Court directed that all licences “issued in terms of the Firearms Control Act, 2000 (Act 60 of 2000), which are or were due to be renewed in terms of section 24 of the Firearms Control Act, 2000 (Act 60 of 2000), shall be deemed to be valid, until the Constitutional Court has made its determination on the constitutionality of the aforesaid sections”.

In other words, provided that you did in fact hold a valid licence in the first place, and provided that it has lapsed purely through “effluxion of time” (none of this applies to termination of licences for other reasons), you have a good defence to any prosecution.

Of course your best defence will always be to apply for renewal timeously.  But if for any reason you forget or can’t comply, don’t take any chances – ask your lawyer to confirm that you are protected by this new ruling, and get help immediately if the police come after you.

The penalties for unlawful possession are too serious for any mistakes here.

VERBAL AGREEMENTS – THE PROPERTY PERSPECTIVE

 

 

 

“A verbal contract isn’t worth the paper it’s written on” (Samuel Goldwyn)

A recent High Court judgment is yet another reminder of how essential it is to comply with all necessary formalities when entering into any sort of agreement, particularly when dealing with the sale of property.

A fight over eviction and a property transfer attack

  1. A property was transferred to a buyer in terms of a sale agreement in 2015.
  2. The occupants of the property refused to vacate, and when the new owner applied for their eviction, they alleged that in 2007 they had verbally agreed with the original owners that, upon finalisation of several specified issues, they would enter into a formal agreement of sale to purchase the property.
  3. They therefore asked not only for the eviction application to be dismissed, but also for the 2015 sale and transfer to the new owner to be set aside in order to transfer the property to their own nominated family trust.

What the Court said

  • Any such verbal contract would, held the Court, be an “agreement to agree” which in our law certainly can be valid and binding, but generally only if it complies with all the formal and other requirements for validity applying to the “main” contract that they have agreed to enter into.
  • The occupants’ problem was that a verbal agreement for the sale of immovable property cannot be valid, because this is one of the few classes of agreement which our law requires to be (a) in writing and (b) signed by both seller and buyer “or by their agents acting on their written authority”.
  • The occupants were accordingly given 15 days to leave the property, and the original sale and transfer remain in place.

Three things to bear in mind

  1. Remember that in our law you will usually be bound by what you agree to verbally; property sales are one of only a few specific exceptions to that principle. But as a general rule verbal contracts are best avoided.  They are a recipe for misunderstanding and dispute because people tend to hear only what they want to hear, and to then convince themselves that their memory is better than yours.  Worse, a dishonest opponent will have more wriggle room to get out of your agreement.  Rather have everything recorded in black and white, and signed.
  2. Also tread carefully around “agree to agree” scenarios. Our case law is full of costly disputes over “letter of intent” and “let’s agree now to enter into a full contract later” cases.
  3. In particular, if you are about to embark on any form of property transaction, the lesson is, as always, to seek legal help before you agree to anything. There’s usually a lot at stake when property’s involved, and many pitfalls for the unwary.

For professional legal advice, contact us on 041 501 9800.

EARLY TERMINATION OF FIXED TERM

Much has been said concerning justifying the use of a fixed term contract for employees earning below the threshold. (Currently R205 433.30). Whilst the Labour Relations Act (LRA) sets out the principles in this regard, the LRA does not specify whether such a contract may be terminated prior to the date specified in the contract.

The question to be answered is what happens if due to economic considerations or otherwise a company is required to terminate the fixed term contract prior to the end date specified?

The courts are clear that if the contract does not make provision for its early termination, the employer is not able to cancel the contract to the detriment of the employee.

In such situations the employer would be forced to continue employing the employee or would need to pay the employee for the balance of the contacted period.

The above clearly shows how important it is to ensure that the fixed term contracts utilised are well constructed as the converse could be a costly mistake.

For expert advice contact Tracey Mouton on 041 501 9800. Email traceym@goldlaw.co.za

TIPS TO PREVENT DELAYS IN SELLING YOUR HOME

  • Pay all rates and service charges on the property to ensure that your account is up to date. A rates clearance certificate will not be issued by the municipality if there are unpaid arrears.
  • Keep the original title deed available. If there is a bond over the property, the title deed will be held by the bank.
  • Keep all bond payments up to date, if there is a bond over the property.
  • If the property is in a sectional title unit, ensure that all levies are up to date and that all outstanding requirements of the body corporate have been met. The body corporate may need to consent to the sale and will withhold its consent if there are any outstanding payments or other matters.

For more information or advice contact us at Goldberg & de Villiers Inc Tel: 041 501 9800.

Protection of Personal Information

There is nobody who has a cell-phone that has not been the victim of a constant stream of telephone calls from businesses marketing themselves and their products as “the next big thing”.  Many of us find ourselves constantly explaining to the person on the other end of the line – whose job it is to harass the list of potential clients they are given on a piece of paper on a daily basis –  that we do not require the product they are offering. The question we often end up asking ourselves (and sometimes the telemarketer)  is: How did you get my number?

Recently, I have been asked about whether this type of marketing is legal, and how the company who phones you got your details. The two main pieces of legislation which protect consumers in this regard is the Protection of Personal Information Act 4 of 2013 (“PoPI Act”)  and the Consumer Protection Act 68 of 2008 (“CPA”).

Section 11 of the CPA states that every person has the right to refuse to accept, discontinue or pre-emptively  block any approach or communication to that person, if the approach or communication is primarily for the purpose of direct marketing.

The CPA goes further and states that to facilitate the realisation of each consumer’s right to privacy, and to enable consumers to efficiently protect themselves against the activities contemplated in subsection (1), a person who has been approached for the purpose of direct marketing may demand that the person responsible for initiating the communication desist from initiating any further communication.

In simple terms, the purpose of the PoPI Act is to ensure that all South African institutions conduct themselves in a responsible manner when collecting, processing, storing and sharing another entity’s personal information by holding them accountable should they abuse or compromise your personal information in any way. The PoPI legislation basically considers your personal information to be “precious goods” and therefore aims to bestow upon you, as the owner of your personal information, certain rights of protection and the ability to exercise control over:

  • when and how you choose to share your information (requires your consent)
  • the type and extent of information you choose to share (must be collected for valid reasons)
  • transparency and accountability on how your data will be used (limited to the purpose) and notification if/when the data is compromised
  • providing you with access to your own information as well as the right to have your data removed and/or destroyed should you so wish
  • who has access to your information, i.e. there must be adequate measures and controls in place to track access and prevent unauthorised people, even within the same company, from accessing your information
  • how and where your information is stored (there must be adequate measures and controls in place to safeguard your information to protect it from theft, or being compromised)
  • the integrity and continued accuracy of your information (i.e. your information must be captured correctly and once collected, the institution is responsible to maintain it).

We have to accept that we now live in an information age and along with this progress comes the responsibility for each person to take care of and protect their own information. Do not accuse someone else of sharing or compromising your personal information when you publish the very same information on public services like Facebook, LinkedIn, Google+ or public directories.  Modern technology makes it easy to access, collect and process high volumes of data at high speeds. This information can then be sold, used for further processing and/or applied towards other ends. In the wrong hands such an ability can cause irreparable harm to individuals and companies. To protect your right to privacy and abuse of your information, data protection legislation is necessary even if it means imposing some social limits on society to balance the technological progress. So remember:  The PoPI Act cannot protect you if you do not take care to protect yourself.

Remember that the next time somebody calls you to sell you something you did not sign up for, you have the right to request how they got your personal information, and that they desist from continuing to call you.

For quality legal assistance contact our Litigation Department on 041 501 9800.

Employment Equity – Preparing for a Director-General Review

In the wake of the Department of Labour’s Roadshow on Employment Equity, it is imperative that employers properly comply with the requirements of employment equity and not use a tick box approach to compliance. The Department of Labour has realised that employers have been superficial in their approach and the intensifying Director-General Reviews is aimed at ensuring employers do what they are supposed to and not the bear minimum.

One aspect that the Department of Labour will scrutinise is the consultations with employees. In order to “pass the test” in this regard it is imperative that the consultations are genuine. The best way to illustrate this to the Department is to ensure the following are in order:

  1. The Agendas are to set out fully the topics that will be discussed and debated;
  2. Attendance registers are to set out the constituencies represented;
  3. Detailed minutes, including resolutions taken and action items must be drafted. The minutes are to reflect the discussions held especially in respect of the analysis the workforce profile and the procedures, practices, policies and work environment;
  4. Proof of regular meetings – 4 per year is deemed regular

For assistance in preparing for a Director-General Review or drafting your Employment Equity Plan and Report, contact our Human Resources and Employment Law Division on 041 501 9832 or traceym@goldlaw.co.za

 

JOINT BOND BETWEEN UNMARRIED PARTNERS/FRIENDS

Although applying for a joint bond with a partner to whom one is not married or a friend may be a viable option to enable persons to enter into the property market, it may become a costly and complicated exercise if the relationship ends or circumstances change. If one of the partners wishes to be free from the bond and agrees to be removed from the bond, the remaining partner will have to apply to the bank to be substituted as debtor. The bank will only approve such a substitution if the remaining partner qualifies for the loan as a whole. The partner being removed from the bond will also be required to sell his/ her share in the property to the remaining partner. Alternatively the property should be sold as a whole to a new owner and the bond should be cancelled. All of these options will result in the parties incurring costs and expenses for instance the costs to register a substitution of a debtor, transfer costs relating to sale of a share in the property, transfer duty and rates and taxes for clearance purposes. It is recommended that advice be obtained on the legal, tax and cost implications before entering into such an arrangement.

At Goldberg & de Villiers Inc, our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill​ and Nicholas Mitchell, assisted by Bardine Hall will gladly assist you with any of your Property Law related matters. Please contact us on 041-5019800.

TRANSFERRING YOUR HOUSE TO YOUR CHILD

Elderly parents often consider transferring their immovable property to their adult children instead of bequeathing it to them after their death.

There may be practical advantages to such a decision but the legal, tax and cost implications should be carefully considered.

The transfer of the property is usually in the form of a donation (a gift) or the sale of the property to the child. A written contract must be entered into between the parent and child.  The following should be carefully considered and the advice of an expert should be obtained.

DONATIONS TAX : If the property is donated to the child, donations tax of 20% is payable by the parent to SARS on the value of the property. Every person is entitled to an annual exemption of R100 000 in respect of donations tax. The first R100 000 of the value of the property will therefore be exempt from donations tax and the balance will attract donations tax.

ESTATE DUTY : The above tax implications should be carefully compared to the estate duty implications if the property should be bequeathed to the child. The parent may be entitled to a surviving spouse rebate and a rebate of R3,500,000.00. It may therefore not be necessary to reduce the value of the estate of the parent in order to reduce estate duty. Sufficient cash must however be available in the estate to cover the transfer costs. Estate planning advice should be obtained.

TRANSFER DUTY : Bequests of immovable property are exempt from transfer duty. Whereas if the property is transferred during the lifetime of the parent, the child who acquires the property will be liable for transfer duty on the value of the property above R900,000.00. SARS requires two independent valuations of the property if the parties to a transaction are related.

OTHER COSTS : If there is a bond over the property, the outstanding balance of the bond would have to be cancelled. Depending on the financial arrangements between the parties, the child may be required to obtain a bond in his or her name in respect of the property before the transfer will be permitted. Attorney’s fees would be payable in respect of the bond cancellation, bond registration and the transfer of the property according to prescribed rates. It is recommended that quotations of all costs be obtained to ensure that there are no unexpected expenses.

At Goldberg & de Villiers Inc, our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill and Nicholas Mitchell, assisted by Bardine Hall will gladly assist you with any of your Property Law related needs. Nicholas Mitchell, heads our Estates Department will also be happy to assist you in this regard. Please contact us on 041-5019800.

MISTAKES IN CONTRACTS – What you need to know.

All contracts are based on consensus between the parties to it. Often, the parties think that they are in agreement and have reached consensus, but in fact are mistaken. If the contract is concluded and it later turns out that it was based on a mistaken belief that a certain state of affairs existed when in fact they did not, the aggrieved party may want to opt out of the contract, or claim relief from the other party.

Mistakes are classified into two categories, namely those that are material and those that are non-material. A material mistake is one which goes to the heart of the contract and completely negates consensus. Consequently, no contract can be said to have existed. In the case of a non-material mistake, a valid contract comes into existence. However, the contract is voidable (rescindable) if consensus was reached in an improper manner by way of misrepresentation, duress, undue influence or commercial bribery.

Mistakes can relate to the subject matter of the contract (error in corpore), the true nature of the contract (error in negotio), the identity of one of the parties to the contract (error in persona) or to an attribute or characteristic of the subject matter of the contract (error in substantia). An error in substantia is usually not regarded as a material mistake, whereas all of the others generally result in a material mistake.

When concluding a contract, it is important to be very clear regarding all of the aspects of the contract, so as to avoid a situation where the contract might be considered of no force or effect due to one of the reasons mentioned above. It will be impossible to try and uphold the terms of an agreement which is rendered of no force or effect due to a material mistake.

For quality legal services contact Goldberg & de Villiers Litigation Department on 041 501 9800.

RESTRAINT OF TRADE

A restraint of trade is characteristically used in an employment situation where an employee has access to the employer’s client lists and due to the nature of the position gains trust, confidence and personal relationships with the clients.

A typical example of such an industry is the insurance industry. Whilst a restraint of trade may be imposed it is essential that it be well constructed and that the intention of the contracting parties be spelt out clearly.

In a recent matter, company was upset that its employee had acquired an ex-client of their business. The company launched an interdict application in the Labour Court which application centred on whether a previous client of the company is still a protectable interest in relation to the restraint of trade.

The Court held that if the restraint does not specify the definition of client, it is only capable of being interpreted as current clients of the company. The Court held further that should a client leave the company of his or her own volition and without being induced or enticed to leave by the restrained employee and move his or her business to that restrained employee, the restrained employee cannot be seen to have breached his or her retrained.

This particular case was dismissed against the company and the company was ordered to pay costs.

The important lesson to be learnt from the matter is that a restraint is only as good as its terms and only a properly reasonably drafted restraint will be enforceable.

For more information in relation to restraints of trade and other employment law aspects, please do not hesitate to contact Tracey Mouton on 082 898 7841 or traceym@goldlaw.co.za.