EXPATS AND EMPLOYERS: PLAN NOW FOR THE NEW EXPAT TAX CHANGES

This article is important to you if you are either a South African working abroad or an employer of one. If you don’t fall into either of those categories, but know someone who does, please think of passing this on.

As an employee earning foreign remuneration (salary, leave pay, bonuses, allowances, commission etc), you currently enjoy an uncapped tax exemption (on that remuneration only, not on other foreign income) provided that you work overseas –

  • For more than a total of 183 days during any 12 month period, and
  • More than 60 of those days are consecutive.

That however is set to change from 1 March 2020, when only the first R1m p.a. of your earnings will be exempt – you will pay tax on anything over that. With the Rand’s weakness showing little sign of abating, a lot of expats and their employers are going to be affected.

Are you a “tax resident”?

Only “tax residents” are affected, so the first thing you should establish is whether you are still a tax resident or not. That’s not always easy, so take professional advice in any doubt.

To illustrate some of the complexities involved, both physical emigration/relocation and “financial emigration” are different concepts to “tax emigration”. Moreover the Income Tax Act’s tests for tax residency are hardly a model of clarity – you are a “resident for tax purposes” if you are either an “ordinary resident” or a resident in terms of the “physical presence test” –

  1. You are, says SARS, an “ordinary resident” if South Africa is the country to which you “will naturally and as a matter of course return after [your] wanderings’, your “usual or principal residence”, or your “real home”.
  2. Even if you aren’t an “ordinary resident”, you will still be a resident under the “physical presence test” if you are physically present in South Africa for more than –
  3. “91 days in total during the year of assessment under consideration; and
  4. 91 days in total during each of the five years of assessment preceding the year of assessment under consideration; and
  5. 915 days in total during those five preceding years of assessment.”

Under the physical presence test however if you are outside the country for a continuous period of at least 330 days you are not regarded as a tax resident.

Should you “tax emigrate”?

If you are indeed a tax resident, don’t think of changing that status without taking full advice. “Tax emigration” and “financial emigration” are complicated processes and full of pitfalls. For example you could be entitled to foreign tax rebates or other relief on your taxable (i.e. +R1m) foreign earnings, or there may be other benefits to remaining a tax resident. So it is important to have an expert look at your specific situation and determine what is best for you overall.

The big thing is to be aware that change is coming. Some long-range planning is the only way to be certain that there are no unpleasant surprises waiting to spring out on you down the line.

For more information, contact the professional legal team at Goldberg & de Villiers on 041 5019800.

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DON’T BE NEGLIGENT WITH NEGLIGENCE. NEGLIGENCE vs GROSS NEGLIGENCE

The most important element to grasp when dealing with matters that are based on negligence or gross negligence is to understand the meaning of each term and the manner in which an offence for each comes into existence.

Negligence is the failure to fulfil the standard of care that ought to be exercised by a reasonable person during certain events or under certain circumstances. The standard of care to be taken is one that would prevent injury or loss to another person or entity.

The offence of negligence is determined through the reasonable person test which entails asking the question of whether a reasonable person who is placed in a certain position would have foreseen that harm would result if certain acts were conducted or omitted.

However the most important aspect to look at is whether the alleged guilty party truly failed to take the steps that a reasonable person would have taken to guard against imminent harm.

An example of negligence would be when an investigator fails to conduct the proper checks and balances of keeping persons away from a crime scene when conducting an investigation.

The question is did such investigating officer foresee that, through their failure to conduct the necessary checks and balances, harm in the form of a contaminated crime scene would be the result.

Gross Negligence is a much more serious offence than negligence and may have extremely unfavourable consequences. An act or omission is seen as being grossly negligent when a person relentlessly acts in a manner that is negligent. It also applies in instances where the persons’ act or omission is of an extremely serious nature.

Legally, gross negligence has been recognised as an inclination or mind set of total, reckless and harmful disregard a person has towards their actions and the consequences that may arise from such act or omission.

Therefore, where gross negligence is deemed to be the form of error that occurred the duty to apply reasonable care where due ought to have evidently been voluntarily as well as consciously disregarded.

An example of gross negligence would be where an employee who foresees the fact that the vehicle they are driving is losing power and cannot be controlled adequately, reconciles with themselves and continue driving such vehicle up a steep hill where the likelihood of such vehicle coming to a sudden halt at an incline is very high resulting in it rolling back onto vehicles behind it.

A further question to ask is whether such reasonable person would have taken the necessary actions to prevent the harm that was foreseen by them. Therefore the elements of negligence and gross negligence must be applied accordingly to each set of facts per matter.

A glimpse into the courts

In the case of FAWU obo Maphutha / Eskort Ltd 2011 4 BALR (CCMA) (hereinafter referred to as the FAWU case) Mr Maphutha was dismissed from his position of employment as Engine Room Operator due to the allegation of gross negligence.

The facts behind his dismissal were that the employee had not switched on the machinery during a particular night shift which resulted in the substantial loss of production time as well as wasted costs for the company.

The employee stated that he had emphatically attempted to start the machinery and to make telephonic contact with the relevant supervisors to inform them of the problem he was facing regarding the machinery.

The employee thus put it forward that his actions were not negligent as he attempted to switch the machinery on as well as make contact with the relevant superior.

The company stated that the employee was not supposed to attempt to fix the water problem but to contact his superior.

The commissioner overseeing the matter acknowledged the fact that the employee did make contact with the company electrician, who in return advised the employee upon leaving the premises to contact the foreman or the production manager should the problem continue which was not done by the employee.

A further observation was made with regards to contact being made to the relevant superiors by the employee in that the employee completely failed to contact the maintenance manager, who was contactable for 24 hours a day, of which no explanation was provided by the employee as to why he failed to contact the maintenance manager.

The commissioner held that had the employee contacted the maintenance manager there would have not been a substantial loss of production time and costs. Therefore through these actions he acted irresponsibly.

The commissioner brought to light the fact that employers, according to employment principals, have the right to set reasonable standards within their workplace and that they may require that their employees work in accordance to such reasonable standards.

Therefore during instances where an employee holds a position of trust, where specific actions or omissions that are negligent bring about dire consequences for the employer, such relationship of trust is undermined where an employee fails to apply due diligence and a standard of care.

The investigation into an alleged negligence allegation is not to necessarily look into the employee’s rebelliousness but to look at such employee’s lacklustre attitude toward the standard of care that accompanied the detrimental act or omission.

An employee may be deemed as being fairly dismissed on the grounds of negligence when such employee fulfils the requirements of failing to adhere to a standard of care and skill that is reasonably expected of them.

The commissioner further describes that in order for an employee to be held as being grossly negligent to the point where a single act or omission conducted at first instance could result in dismissal such employee would have to:

1.    Untiringly not fulfil a certain duty or task,

2.    The employees act or omission would have to have been of an extremely serious and or unpardonable nature,

3.    The consequences of the act or omission are dire,

4.    Where an employee is in an employment position where an act or omission would result in serious consequences especially if such act or omission is negligent, and

5.    Where an employee possesses or claims to hold specialised skills and or experience fails to apply such skills and experience to a detrimental point.

The employee in the FAWU case was dismissed for gross negligence as it was evidential that they did not attempt to telephonically make contact with the manager as they ought to have done.

The result of such failure was a substantive loss on the company’s side. The fact that Mr Maphutha failed to contact the manager for assistance was the crux of the matter as it indicates that he did not follow procedure and not the fact that he failed to start the machinery within the plant.

Therefore the commissioner held that the sanction of dismissal was fair in this matter as Mr Maphutha’s failure to contact the relevant manager for assistance cannot be seen as the actions of a reasonable person.

The key points to consider for a fair dismissal based on negligence are that the employee failed to exercise the standard or level of care and skill that can reasonably be expected of such employee.

Therefore it is extremely important to identify, consider and be able to differentiate the elements of negligence and gross negligence as it may have an enormous impact on an outcome to a matter of negligence or gross negligence.

Should you wish to obtain further information regarding this topic please contact Goldberg & de Villiers Inc, Pembridge House, Bird Street, Port Elizabeth on 041 5019800. Email info@goldlaw.co.za.

 

SECURITY ESTATES : CAN YOU FINE SPEEDSTERS?

There are many advantages to buying in a security estate or other community scheme, including quality of life and increased potential for growth in your property’s value.

As a buyer just be aware that you will almost certainly be binding yourself to a set of rules and regulations imposed by the Homeowners Association (HOA) or Sectional Title Body Corporate. Check that you are happy with them before you sign anything! Our courts have regularly confirmed the general principle that you are bound by what you agree to, and a recent high-profile Supreme Court of Appeal (SCA) decision provides an interesting example.

HOAs and Bodies Corporate on the other hand will be particularly pleased with the outcome, the High Court having originally held that the speed limit rules imposed by the estate in question were an unlawful attempt to usurp State powers over public roads and therefore invalid.

Speeding fines in a golf estate

  • A large golf estate (comprising some 890 freehold and sectional title properties with extensive common areas and facilities) is serviced by a network of roads and pathways. It has imposed a speed limit of 40km/h on its roads, with penalties for speeding.
  • A property owner was fined R3,000 for his daughter’s repeated speeding contraventions, but he refused to pay, and the dispute has since then been grinding its way through the courts.
  • The High Court originally held the speed limit rule to be invalid on the grounds that the estate’s roads were “public roads”.
  • But the SCA overturned this ruling, holding that the estate is a “private township” and its roads are (and were from inception) “private roads”. The “general public” has no right to access the estate’s roads, admission being restricted by electrified perimeter fencing and strict control at gated access points to owners, tenants, employees, guests, invitees and other “duly authorised persons”.
  • Even if the roads had been “public”, said the Court, owners had voluntarily agreed to bind themselves contractually to use the estate’s roads subject to the conduct rules. And because invitees are only allowed into the estate with the owner’s prior consent, the rule making the owner responsible for any breach by them of the rules is valid.
  • Moreover, the estate’s imposition of a speed limit is not unreasonable, especially given the presence of children, pedestrians and animals (wild and domestic) in the estate.

The end result – the estate’s speed limit is valid, it is entitled to impose penalties for breaches, and the owner must pay his daughter’s speeding fines together with some (no doubt substantial) legal costs.

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

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HAVE YOU ACCIDENTALLY PAID THE WRONG PERSON?

In these days of online banking and electronic payment, it’s not uncommon to find out to your horror that you have made a payment to someone in error, either to the wrong recipient or in an incorrect amount. If that happens to you and the recipient refuses to pay you back, what can you do about it?

The other side of the coin of course is whether the recipient of an unexplained and unexpected bank account credit can safely go ahead and spend the windfall (the answer in a nutshell is very strong “no” – if there are indeed any free lunches in the world, this is unlikely to be one of them!).

A recent High Court judgment sets out the requirements for a claim based on “unjustified enrichment”.

A banking app duplicates payments of R861,940

  • A couple were the happy beneficiaries of a malfunction in their bank’s “remote banking” app.
  • In effect they received duplicate transfers into their two accounts totalling R861,940
  • The bank duly sued them for return of the money on the basis that they had been “unjustifiably enriched” at its expense.
  • Initially the couple denied that any duplication had taken place, but at trial they dropped their denial, claiming instead to have repaid the bank in cash.
  • The husband’s story was that he had paid a bank employee, since deceased, who had put the cash into a safe “in case a claim was made”. He was unable to say how much money had been handed over, he could not give dates, and no receipts were requested or given. Nevertheless his evidence was accepted by the trial court and the bank’s claim failed.
  • However on appeal to a “full bench” (a “full court” of three High Court judges, sometimes more), the husband’s version was rejected as “inherently improbable”, and the couple was ordered to repay the bank together with interest and legal costs.

What must you prove?

The requirements for an unjustified enrichment claim are –

  1. The recipient has in fact been enriched by receiving the money (it needn’t be money, it could for example be an asset of some sort)
  2. You have been “impoverished” by the transfer
  3. The recipient’s enrichment was at your expense
  4. The enrichment was legally unjustified.

Once the couple admitted receiving the money without a legal basis, held the Court, the onus shifted to them to prove that there was no enrichment. So their failure to prove repayment was the end of their case.

Don’t despair if the facts of your case don’t tie in fully with the above requirements – our law may have other remedies for you.  Speak to the professional legal team at Goldberg & de Villiers Inc for more information. They can be contacted on 041 5019800.

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SMALL CLAIMS COURT – YOU CAN NOW SUE FOR UP TO R20 000

The monetary jurisdiction of Small Claims Courts has been increased from R15,000 to R20,000 from 1 April 2019.

Not all claims can be pursued in a Small Claims Court –

  • Claims over R20,000 must be pursued in the ordinary courts (you can if you like reduce a larger claim to the R20k to avoid having to do that).
  • Only individuals can sue in a Small Claims Court, i.e. not companies, close corporations etc.
  • The State and local authorities can only be sued in the ordinary courts. Other than those exclusions, you can sue anyone including companies and the like.
  • Certain types of claim (such as divorce matters, some damages claims, interdicts, will disputes etc) must also go to the ordinary courts.

Even if your claim qualifies for the Small Claims Court, think of asking your lawyer for guidance on whether it is your best course of action. Sometimes even seemingly minor claims can have wide ramifications, and there is no substitute for professional advice! Contact the legal team at Goldberg & de Villiers Inc on 041 5019800.

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NEW PROVISIONS FOR RESCISSIONS OF PAID-UP JUDGEMENTS

Effective 11 March 2019, there is a new provision in the court rules that enables debtors to rescind their High Court judgements without having to show good cause.

Prior to 11 March 2019:

A person against whom a judgement had been granted in the High Court would need to apply to court and prove good cause for having such judgement rescinded. This required a debtor to prove:

  • a reasonable explanation for the default;
  • that the application for rescission is bona fide and not made with the mere intention to delay the claim against the debtor;
  • that the debtor has a bona fide defence to the claim.

The mere subsequent settlement of a judgement debt would not constitute a cause for setting aside a lawfully issued judgement.

Effective 11 March 2019:

In terms of the Courts of Law Amendment Act No. 7 of 2017, section 23A was inserted into the rules to specifically provide for rescission of judgement with either written consent of the judgement creditor, alternatively where the judgement debt has been paid in full by the judgement debtor, irrespective of whether or not the judgement creditor has consented to the rescission of judgement. In the latter instance, the application for rescission:

  • Must be made on a form that corresponds substantially with the form prescribed in the rules;
  • Must be accompanied by reasonable proof that the judgement debt, the interest thereon and the costs have been paid;
  • Must be accompanied by proof that the application has been served on the judgement creditor at least 10 business days prior to the hearing of the intended application;
  • May be set down for hearing on any day not less than 10 business days after service thereof; and
  • May be heard by a judge in chambers.

The court may make any cost order it deems fit with regard to such an application.

The aforesaid introduction of this new manner of rescinding judgements certainly is beneficial for debtors wishing to clear their records and does, in the writer’s view, fill a previous void in the rules pertaining to court judgements.

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

LOSING YOUR LICENCE WITH AARTO DEMERITS: MORE DANGER THAN YOU THOUGHT, AND THE WHEELS ARE TURNING

AARTO (the Administrative Adjudication of Road Traffic Offences Act) has been partially in force for years, but its demerit provisions have been on ice for so long now that many of us have lost sight of just how seriously it will impact both ourselves as individuals, and our businesses.

Every individual and every business is at risk

Law-abiding motorists will no doubt welcome the crackdown on serial traffic offenders, but we also need to manage the risks.

Every motorist, every vehicle owner, every professional driver and every transport operator will be at serious risk of losing their licences/permits/operator cards.  Even businesses outside the transport sector will need to manage this – what happens if your sales people are grounded or your office staff can’t drive to work?

The wheels are turning fast now, with amendments to the Act at long last passed by Parliament, and set to come into law when signed by the President.

Will it be delayed yet again?

The demerit proposal has been bouncing around for a decade, with several false starts and there is talk of court challenges, plus the commencement date may or may not be delayed.

But at long last the wheels are definitely turning, and turning fast.

Be prepared!

Unlucky 13 – easier to reach than you thought

The demerit system is complicated, but in a nutshell you will in addition to paying a fine incur demerit points for a whole range of offences.

And anyone with 13 or more demerits will have their driver’s licence/professional driving permit/operator card automatically suspended (3 months’ suspension for every point over 12).  And 3 suspensions will result in full cancellation.

Don’t think that 13 demerits will necessarily take the average driver a long time to accumulate. Consider the demerit points applicable to some sample offences (there are many thousands of them – the table below gives just a few examples).

Sample offences and demerit points

Reducing demerit points, and discounts on fines

You are also rewarded for obeying the law –

  1. Any demerit points you have picked up are reduced by one point per 3 month period you remain offence-free.
  2. Early payment of fines will earn you a 50% discount. Set up a payment control system so you don’t miss payment deadlines.

Businesses and employers – manage your risks

Think now about how you will manage the risk of your employees (especially those employed as drivers) repeatedly offending –

  • How will you monitor your drivers’ demerit points? Although for many offences both driver and operator will incur demerits, some driver offences will apply to the driver only.
  • Are your employment contracts correctly structured to ensure you have access to your employees’ demerit points’ status? And to deal with the consequences if they have their licences suspended or cancelled?
  • Check your insurance policies – must you disclose any changes in your employees’ demerit status? Are you at risk of losing cover?

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For more information, contact the professional legal team at Goldberg & de Villiers Inc on 041 5019800.

 

 

 

YOUR DOG, CAT OR COW (EVEN YOUR BEES) COULD COST YOU MILLIONS

Our law will generally hold you liable for damages only if someone else can prove that you caused them loss/damage/injury through your “fault” (intent or negligence). That seems fair and logical – if it’s your fault, you pay.

If however the loss was caused by your animal/s, you are in a much more dangerous position – you can be sued on a “no fault” or “strict liability” basis. And that’s a sobering prospect. It means that bad behaviour by Maxie the Mongrel, Skollie the Cat, Daisy the Cow, or even (per an old 1926 case) your “domesticated” swarm of bees, could leave you with a bill for millions without your being in any way careless or at fault.

Ignorance of that risk is very definitely dangerous rather than bliss.

A recent High Court case illustrates.

R2.3m claimed by a dog attack victim

  • The claimant was walking down a public street, minding his own business and with every right to be where he was, when three large “Pitbull type” dogs attacked him, viciously and without provocation.
  • He was very seriously bitten and ultimately had his left arm amputated at the shoulder. He escaped more serious injury or even death only through the courage of a passer-by who fought the dogs off (and was himself attacked for his trouble).
  • The victim claimed R2,341m in damages from the dogs’ owner.
  • The dogs had no history of biting or attacking people and were treated as house dogs. They had the run of the owner’s house and garden/yard, which was walled and fenced off from the street. Access to the street was via a gate which was (said the dogs’ owner) normally kept locked, and was on the day in question double-padlocked.
  • An intruder, claimed the owner, had in his and his family’s absence broken the gate open and left it open – giving the dogs access to the street and to their victim.

Liability and the law

  • The victim was unable to prove that the dogs’ owner rather than an intruder had left the gate open, so had failed to show that the owner had been negligent in any way.
  • But, held the Court, the owner was still accountable on the basis of an old Roman law – the “pauperian action” or actio de pauperie – which makes you strictly liable for the consequences of your domesticated animal’s behaviour. The thinking behind this ancient law incidentally was that “an animal (being devoid of reasoning) is incapable of committing a legal wrong” and there have been suggestions that it be scrapped in our modern law. But as of now it is still very much enforced by our courts, and you remain at risk.
  • Pauperian liability is a complicated subject (involving much Latin and learned judicial interpretation of ancient laws) and you will need specific legal advice if you find yourself on either side of a claim. But in a nutshell you are liable only if your domesticated animal (different rules apply to wild animals) acted from “inward excitement or vice” and against its natural behaviour.
  • You do also have several defences available to you, such as the victim contributing to his/her loss through their own actions (provoking an attack or trespassing for example) or – the defence raised in this case – where the loss results from the negligence of another person. Again, a complicated subject needing specific legal advice, but out of interest let’s have a look at how the Court in this case dealt with the particular defence raised.
  • The defence in question is available if you can prove that a third party had control of the animal but negligently failed to exercise that control properly. The dog owner in this case asked the Court to extend that defence to cover his situation where the intruder had no control over the dogs, but negligently gave them the opportunity to attack the victim.
  • The Court refused, holding that the defence only applies where the third party has control of the animal. The dog owner must therefore pay the victim whatever level of damages he can prove. So – bottom line – you are liable even when the fault lies with someone else, and even when you are completely without fault, unless that other person had control of the animal at the time.

Protect yourself!

First step obviously is to reduce the risks your animals pose to others. Then check that your insurance will cover you if you are sued. Disclaimers of liability need careful wording to afford any hope of protection.

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For more information, contact the professional legal team at Goldberg & de Villiers Inc. on 041 5019800.

NEIGHBOURS BUILDING? KNOW YOUR RIGHTS RE PLAN APPROVAL

Your neighbours apply to the municipality for approval of building plans. You object strongly – if allowed, you say, the new building/addition/alteration will seriously impact on your property’s appeal and value. It will be unsightly and objectionable. It will ruin the neighbourhood.

How must the municipality’s “decision makers” assess the plans in light of your concerns? A long-running legal fight over just that question has finally been resolved by the Constitutional Court.

The Court’s decision is a vitally important one for all property developers and owners planning to build, as well as for their neighbours, for the simple reason that no construction work can proceed without municipal approval of the building plans (although note that some categories of “minor work” may not require plan approval – ask your local authority for details).

Passed plans and blocked off balconies

  • The owners of a seventeen story city building had been allowed to build balconies right up to the neighbouring four story building’s boundary.
  • The neighbouring building’s owners applied for approval of plans to add another four stories. The problem was that the balconies on three floors of the first building would touch the top stories of the new additions.
  • Predictably, strenuous objections to the building plans were lodged, but in the end result the municipal decision makers approved the plans, and building commenced.
  • Had the plans been properly approved? A string of court battles later, the highest court in our land has had its (final) say on the matter.

3 disqualifying factors and the “legitimate expectation” test

Central to this decision is a statutory protection for buyers and neighbours in regard to various “disqualifying factors”. The proposed building cannot be (our emphasis) “erected in such manner or will be of such nature or appearance that–

  1. The area in which it is to be erected will probably or in fact be disfigured thereby;
  2. It will probably or in fact be unsightly or objectionable;
  3. It will probably or in fact derogate from the value of adjoining or neighbouring properties”.

The Court’s decision – the building plans had not been properly approved. They must go back to the municipality for re-assessment, and the developer is accordingly back to square one. Presumably a demolition order will be on the cards if they are ultimately unsuccessful in having their plans passed.

A decision maker must, held the Court, in assessing the 3 factors above consider the impact of the building proposal on neighbouring properties, from the perspective of a “hypothetical neighbour”. In a nutshell, will it probably, or in fact, be so disfiguring of the area, objectionable or unsightly that it would exceed the neighbour’s “legitimate expectations”?

And whilst it has always been clear that neighbours have to be considered in regard to the “derogation of value” (i.e. reduction of value) aspect, this decision for the first time confirms that their viewpoints are relevant, and must be considered, in regard to all three aspects.

Stronger rights – but not for “sensitive neighbours”

That certainly doesn’t mean however that neighbours can willy-nilly object to plans and expect the municipality to back them regardless of the facts. On the contrary, the Court made it clear that “The legitimate expectations test is not a subjective test determined by the whim of a sensitive neighbour.  The test is objective and based on relevant facts, which would, in the ordinary course, be placed at the disposal of the decision maker”.

The important thing remains that your rights as the “non-building neighbour” just got a lot stronger. Protect them!

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For more information contact the professional team at Goldberg & de Villiers Inc on 041 5019800.

 

CONVEYANCING FEES: WHAT ARE YOU PAYING FOR?

If you are a first time home buyer and new to the home buying process, you may not be familiar with the conveyancing process, which parties are involved and who pays the costs.

Conveyancing is the legal process whereby ownership of immovable South African property is transferred from one party to another.

The seller has the right to appoint a Conveyancer, of his choice, to attend to the transfer of his immovable property, although this, like other aspects of a Sale Agreement, can be varied by negotiation between the parties.

Conveyancing can be a complicated process and requires specialist knowledge and accuracy – particularly in less straightforward transactions that include things like subdivision or consolidation of properties, or the registration of servitudes.

Because of this, only an attorney who has undergone further qualification by passing the national conveyancing examination is allowed to perform these services.

A Conveyancer is therefore an admitted attorney who has passed a specialised conveyancing examination and has been admitted as a Conveyancer by the High Court of South Africa.

The first step in the sale of immovable property is the conclusion of a valid Agreement of Sale.  Sellers and buyers would be well advised to instruct an experienced Conveyancer to review the Sale Agreement on their behalf, to ensure that it meets their specific requirements and to ensure that the said Agreement optimally provides for the protection of their interests.

The Sale Agreement is handed to the appointed Conveyancer, who will draft the necessary documents. Both the seller and the purchaser will be required to call at the offices of the Conveyancer to sign the necessary documents.

The costs relating to the transfer of fixed property will normally entail Transfer Duty or Value Added Tax.  Transfer Duty is a form of tax payable, by the purchaser, to SARS and is calculated on the value of the property.  Where the seller is registered as a Value Added Tax vendor in respect of the property, Value Added Tax will be payable in respect of the transfer of the property.  If Value Added Tax is payable in respect of the transaction, no Transfer Duty will be payable. The amount of Transfer Duty which is payable is calculated according to a formula based on the value of the property.  Transfer Duty normally constitutes the majority of the costs of the transaction.

Rates and levies must also be paid in full on date of transfer.

The Conveyancer’s fees are prescribed by a tariff and are calculated on a sliding scale based on the purchase price.  The purchaser is normally liable for payment of these fees.

Where a bond is to be registered, the Conveyancer’s fees are prescribed by a tariff and are calculated on a sliding scale based on the amount of the bond and are normally payable by the purchaser.

If the seller has a bond registered over the property, the said bond must be cancelled on transfer, and the seller is responsible for payment of the Conveyancer’s fee for cancellation of the said bond.

Once the documents have been signed by the purchaser and the seller, and the transfer costs, transfer duty and rates and levies have been paid, the Conveyancer may proceed with the registration of transfer of the property, in the Deeds Office.

The above constitutes an outline of the normal conveyancing process.  Other complexities, occasioned by subdivision and consolidation of properties and the registration of real rights may also arise. The sale of one property can often not take place until the purchaser has sold and transferred his property and so on. Conveyancing is in fact a complex process and requires extensive knowledge and accuracy on the part of the Conveyancer.

The period of time it will take to register a transfer depends on the co-operation of the parties and the extent to which they have complied with their contractual arrangements.

In view of the critical role which a Conveyancer plays within the conveyancing process it is recommended that sellers apply proper care when selecting a Conveyancer to attend to the transfer of their property.

At Goldberg & De Villiers the directors in our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill and Bardine Hall and and a team of 8 highly skilled paralegals will gladly assist you with any of your Property Law related needs. Contact them on 041 501 9800.