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.

Constitutional Court Victory for New Home Owners

On 29 August 2017 the Constitutional Court ruled, in a unanimous decision, that new home owners can no longer be held liable for historical debts incurred by the previous owners of immovable property.

Previously, a property could not be transferred to a new owner until the municipality issued a rates clearance certificate. This certificate cleared any debts owing to a Municipality, spanning a two year period.

This meant that any debt surpassing the cut off became the responsibility of the new home owners, and they were held liable for such debt.

Municipalities used and interpreted the Municipal Systems Act as the basis for refusing to issue clearance certificates until ALL debts had been paid. This often resulted in new owners paying off debts they had not incurred in order to obtain their much needed certificates that allowed them to transfer property they had purchased.

The Constitutional Court ruling now prevents this from happening; the new owner is no longer liable for the debts that arose before the transfer of the property.

Justice Cameron’s judgement stated: “It is declared that upon transfer of a property, a new owner is not liable for debts arising before transfer from the charge upon the property under Section 113.

This landmark ruling will most likely have a significant impact on how Municipalities recover not only historical debts, but also how current debts are recovered. Municipal account holders might soon experience far more pressure and far less leniency regarding debts incurred with their local municipalities.

Read the full case here http://municipaldebt.co.za/wp-content/uploads/2017/08/2017-08-29-CONCOURT_JUDGMENT-CASES-CCT-283-16-293-16-294-16-NEW_VENTURES_JORDAAN_HISTORICAL_MUNICIPAL_DEBT.pdf

 

LATEST DEVELOPMENTS ON THE PROTECTION OF PERSONAL INFORMATION ACT: IS THE PROTECTION OF PERSONAL INFORMATION IN TERMS OF POPIA IN FORCE?

The Protection of Personal Information Act, 2014, (Act 13 of 2014), (POPIA), was assented to on 19 November 2013. Only certain sections of POPIA were brought into operation in order to appoint the Information Regulator and to allow the Minister to develop and draft regulations.

Once POPIA is fully in operation it will safeguard the personal information received, collected or disseminated from your business clients during the course of your business operations. POPIA will not prevent the processing or sharing of the personal information of your clients but will regulate how it should be done so that the information is safeguarded against misuse and abuse.

The Information Regulator recently released its strategic plan for 2017 to 2020. In terms of its strategic goals for the financial year 2017/2018 regulations will be developed.

It will be important for industries and businesses that receive, collect or disseminate their clients’ personal information to closely follow the developments pertaining to POPIA during the next year to ensure readiness, to receive advice on how to comply and possibly to influence how the Information Regulator will implement POPIA by submitting comments on the draft regulations when published.

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