December 11, 2017
Selling Property this Festive Season? 3 Tips for a Smooth Transfer
The Festive Season can be a great time to sell property, and to buy it. Warm weather, sunny gardens and bright rooms, lots of holidaying visitors, and more time on your hands generally all help to stimulate the property market.
Just bear in mind that, Summer Holidays or not, whether you are selling a property or buying one, you want the whole process to be handled professionally and smoothly, with as little delay as possible. After all, both of you are dealing with what is probably one of your most important assets.
Here are some tips to help you achieve that smooth and hassle-free transfer –
1. Choose the right conveyancer
Central to ensuring that all goes well is the choice of which conveyancing attorney you nominate to carry out the specialist task of transferring the property from the Seller’s name to the Buyer’s.
Choosing a conveyancer is one of the things that is technically up for negotiation, but as a seller, you should always insist on making the choice.
Why? You carry more risk than the buyer who, having to raise the purchase price within an agreed time period, is more likely to default or cause delay in the process than you are. Moreover it is your asset – your house – at stake, so it makes sense to have your own attorney directing the process and ensuring that the purchase price is fully paid or secured.
The fact that the buyer invariably pays the costs of transfer isn’t relevant here. A nervous buyer can always appoint his or her own attorney to keep a watching brief on the transfer, although – unless and until a dispute arises – that really shouldn’t be necessary seeing that conveyancers have a professional duty of care to act fairly to both parties.
Bottom line – as a seller, choose an attorney you can trust to act with speed and integrity. And don’t be persuaded by anyone to give up your right to do the nominating!
2. Avoid any possible uncertainty
Clearly record your choice of attorney in your written sale agreement. Otherwise you could be opening the door to dispute. That’s true for all provinces but is a particular risk in KZN where historically the buyer had the choice if the agreement was silent on the matter (the current legal position on that is uncertain).
3. Bring your attorney into the picture from Day One
Sellers in particular should remember this basic principle – agree to nothing (verbally or in writing) until your lawyer has checked it out for you! A lot can go wrong with property sales, from your initial choice of who to appoint to find a buyer for you, through to the wording and signing of the agreement of sale itself.
Our law reports are bursting at the seams with bitter, expensive and disruptive legal disputes which could have been avoided had the parties sought legal assistance before putting pen to paper.
© LawDotNews
December 11, 2017
It’s Wedding Season! Here’s Why You Need an ANC (Whether You Marry Here or Overseas
“He was a dreamer, a thinker, a speculative philosopher… or, as his wife would have it, an idiot” (Douglas Adams)
Note: Although by way of example we explore below the “international wedding” scenario, even if you are South Africans marrying in South Africa you need an ANC. Read on…
The Rand’s weakness notwithstanding, many couples still plan their dream weddings overseas. Likewise, many couples living overseas come back to South Africa to marry. If you are one of them, ask your lawyer before you get married for advice on which country’s laws will apply to your marriage.
Why get advice?
In South Africa, our default marital regime is marriage “in community of property”, and for many couples that is the worst option. You may well be better off opting rather for the “out of community” option (with or without “accrual”). The point is to make an informed choice rather than drift blindly into the default regime.
Don’t assume that you will be married out of community of property if your marriage takes place in a country where “out of community” is the default. And don’t assume that it’s your nationality/citizenship that counts.
Not so! No matter where you tie the knot and no matter what your citizenship is, what counts is where the husband is domiciled at the time of the marriage.
The difficulty – determining domicile
So you must figure out where the husband is domiciled at the time of marriage – how do you do that?
“A domicile of choice”, says our law “shall be acquired by a person when he is lawfully present at a particular place and has the intention to settle there for an indefinite period.” In lay terms, that’s where he considers his “home” to be, where he lives and intends to remain permanently. Note that in law you must be domiciled somewhere (even if you think you aren’t), and you can only be domiciled in one country at a time. In other words, you can be stateless but not without a domicile, and you can hold dual citizenship but not dual domicile.
There are two main grey areas here –
- The “intention” bit. What if you have recently moved to South Africa? Or if you are a foreign national living in South Africa? A South African working overseas for a year or two? Or if you have plans to emigrate in the future?There’s a lot of potential for uncertainty and dispute there, and the problem is that in doubt it’s a court that will have to decide. It’s difficult enough at the best of times to decide what another person’s mental “intention” is, and remember that here we’re talking about intention at the time of the marriage. Years (in some cases decades) down the line, imagine the difficulty faced by the poor judge tasked with that one! There have been cases like that and they’ve been messy.
- The “husband” bit. Referring to only “the husband” is discriminatory and almost certainly unconstitutional, and in any event with same-sex unions which partner’s domicile are we looking at? Until parliament sorts that one out with new legislation, uncertainty will reign.
The remedy – avoid all doubt with an ANC
Fortunately, there’s an easy way to avoid all that doubt and potential for dispute, delay and cost.
Simply have your lawyer – before you marry – draw up an ante-nuptial contract (ANC) tailored to meet your particular needs. Then sign it. Then fly away and enjoy your wedding secure in the knowledge that all the annoying (but critical) little legalities have been put to bed!
© LawDotNews
December 11, 2017
Don’t Drink and Drive! The Legal Limits, the Risks, and Advice if Arrested
With stats showing that at least 50% of road deaths are alcohol-related, the authorities will no doubt ensure that once again the Festive Season is also the Season of Roadblocks. With stats showing that at least 50% of road deaths are alcohol-related, the authorities will no doubt ensure that once again the Festive Season is also the Season of Roadblocks.
What happens if you are caught driving “over the limit”?
This is what you face –
- Immediate arrest and detention
- A compulsory blood test
- Prosecution in court (facing substantial penalties, including imprisonment for serious cases)
- If you have caused a death you could well be charged with murder rather than just culpable homicide
- Suspension of your driver’s licence
- A criminal record (you can only apply for expungement after 10 years)
- Whatever happens in court, if you hurt or kill someone else that’s going to be on your conscience. Drunk driving is a choice you make and you will live with the consequences.
Here’s how to avoid all that angst and risk –
- The obvious one – don’t drive after drinking. The limits are (blood) 0,05 gram alcohol per 100 millilitres or (breath) 0,24 milligrams per 1,000 millilitres. Note that lower limits apply to professional drivers (0,02 gram and 0,10 milligrams respectively).
- Remember that many of the online advice columns on how much it’s safe to drink without exceeding the limit are approximations only – stay well under the recommended number of drinks!
- If you don’t have a “designated driver” in your group, use a taxi, Uber, Taxify, Home Drive service etc – convenient, cheap, easy, and responsible.
What if you are arrested? There’s some good advice in the last section of this article: “Drunk driving in SA: Jail, criminal record and huge fines” on Wheels24.
December 11, 2017
Employers and Employees: How to Handle Sexual Harassment at Work
“…there is a new understanding and appreciation of the prevalence of sexual harassment in the workplace and of its devastating effects on the victim. It has become, in effect, a systemic and recurring harm”…“It is the kind of conduct that is a scourge in the workplace, and must be rooted out of existence.” (Extracts from judgments below)
Both employers and employees should know how to handle any form of sexual harassment in the workplace. With the slew of year-end office parties once again upon us, now’s a good time to remind ourselves that, as the “Harvey Weinstein” and other high profile allegations (and the resulting #MeToo Twitter campaigns) have illustrated, victims of powerful abusers can find it incredibly difficult to report such cases and to find redress.
The good news is that our laws against such harassment are strong, and they are rigorously enforced by our courts.
We’ll concentrate on workplace harassment in this article, but remember that you also have strong rights outside the employment sphere. Don’t suffer in silence!
What exactly is “sexual harassment”?
In terms of the “Amended Code Of Good Practice On The Handling Of Sexual Harassment Cases In The Workplace” (“the Code”) it is a prohibited form of unfair discrimination that “… is unwelcome conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace, taking into account all of the following factors:
- Whether the harassment is on the prohibited grounds of sex and/or gender and/or sexual orientation;
- Whether the sexual conduct was unwelcome;
- The nature and extent of the sexual conduct; and
- The impact of the sexual conduct on the employee.”
Sexual harassment can be physical, verbal or non-verbal, it can involve victimisation, intimidation or favouritism, it can be a course of conduct or a single incident, the parties can be of any gender – in fact the definitions are so wide that, if you are subjected to any sexual conduct that is (a) unwelcome and (b) has a negative impact on you, it probably qualifies.
As a victim, what can you do about it?
Firstly, the Code allows you to communicate that conduct is unwelcome in non-verbal ways, like simply walking away or not responding to the harassment. It’s up to the perpetrator to get the message.
Or you can start with a direct but informal approach to explain that the behaviour is unwelcome and you would like it to stop. If you have difficulty in doing so yourself you can make the approach through someone else, perhaps a colleague, superior, counsellor, friend or family member. Your name can be kept out of it at this stage, and the approach can be a general one, explaining for example “that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable and interfere with their work.”
Or you can make a formal complaint, and then your employer is obliged to act. The initial report can again come from you or from someone else. Employers should have sexual harassment policies and procedures in place, providing amongst other things that “It will be a disciplinary offence to victimise or retaliate against an employee who in good faith lodges a grievance of sexual harassment.”
That of course makes it sound a lot easier than it often is in practice, but if your employer fails to protect you or to take appropriate disciplinary action against the perpetrator, or if in any other way your employer’s procedures don’t result in a satisfactory resolution, you can approach the CCMA for assistance.
Your employer must also ensure confidentiality of all complaints (only to the extent possible of course – your identity is integral to the process itself), and assist you where possible with advice, assistance, counselling, additional sick leave and so on as appropriate.
Can you claim damages? 2 cases illustrate
Firstly, you may well have a damages claim against both the perpetrator and employer. Take for example the High Court case of a municipal employee who claimed R4m for a sexual assault and molestation in which her immediate superior had attempted to insert his tongue into her mouth and then later addressed her with words “bearing sexual connotations”. She suffered post-traumatic stress disorder and eventually had to resign her post. The Court ordered that both the perpetrator and employer were liable for whatever damages she could prove.
You could also have a claim against your employer for failing to prevent unfair discrimination in terms of our labour laws. Thus an insurance clerk, subjected to ongoing sexual harassment by a senior manager, was awarded R250,000 damages by the Labour Appeal Court after her employer’s failure to take action against the manager made her work environment intolerable and led to her resignation.
Warning off a sex pest with dismissal; 3 examples to quote
If you have any difficulty in convincing a sex pest to desist, perhaps draw their attention to both the damages cases mentioned above and to one of the many court decisions upholding the penalty of dismissal from employment. Some good examples –
- A divisional director dismissed for subjecting a subordinate to harassment in the form of sexual innuendo (verbal and written), hugging and kissing,
- A senior lecturer dismissed for sexually molesting students and offering them extra marks in exchange for sexual favours (relevant because the power differential is similar to that in any employee/superior relationship),
- A company manager who made verbal sexual advances to another company’s employee at a lodge in rural Botswana.His words “do you want a lover tonight” and “come to my room if you change your mind” were initially held by the Labour Court to be just “trying his luck” and “inappropriate sexual attention” rather than harassment. But the Labour Appeal Court disagreed and confirmed the manager’s dismissal, holding that “the unwelcome and inappropriate advances were directed by [the manager] at a young woman close to 25 years his junior whose employment had placed her alone in his company … Underlying such advances, lay a power differential that favoured [the manager] due to both his age and gender. [The victim’s] dignity was impaired by the insecurity caused to her by the unwelcome advances and by her clearly expressed feelings of insult.”
Employers beware!
There’s many a warning for employers in the above examples. Our courts will hold you responsible for any failure to protect your employees so act quickly and decisively to both prevent and deal with any instances of workplace sexual harassment. Our labour laws are complex and the penalties for breaching them high, so take specific advice upfront.
© LawDotNews
© LawDotNews
November 15, 2017
Closing Down the Guesthouse Next Door: Notes for Owners and Neighbours
“You can be a good neighbour only if you have good neighbours” (Howard E. Koch, playwright)
You decide – for whatever reason – that your neighbour’s new guesthouse is definitely not first prize in your sleepy and peaceful suburb, so you investigate.
You find out that the local municipal zoning scheme doesn’t allow anyone to trade as a guesthouse without a special departure permit, and that your neighbour doesn’t have one.
What are your rights and what must you prove to get assistance from our courts? Must you prove, for example, that you have suffered some form of damage or is it enough to prove only the lack of a permit?
A recent High Court decision illustrates, and would-be guesthouse owners as well as their neighbours should take note.
Shattering the peace – wild parties and nuisance guests
- Residents of a quiet suburb with ‘single residential’ zoning asked the Court to interdict their neighbour from running a guesthouse next door.
- They alleged a number of nuisance disturbances including a wild party of over 50 people “drinking, swearing, yelling and urinating in the street”. That all-nighter was, they said, only temporarily interrupted by a visit from SAPS at 3 a.m. – it finally ended at 7 a.m. after a second police intervention. Other allegations related to disruptive behavior by guests arriving and departing in buses, taxis, trucks and construction vehicles.
- The guesthouse was being operated without the special permit required by the local zoning bye-laws.
- The guesthouse owners said that they had twice applied for special permission in the correct format and had twice been given consent to continue operating the business pending final approval. This was hotly disputed and in any event, held the Court, “such informal authority cannot be the authority … envisaged by the relevant ordinances and regulations in this regard. After the proper procedure had been followed, and in particular after proper notices have been given to the property owners in the vicinity of the guesthouse, and notices in the local Newspaper, only then after proper consideration may consent be granted for the special use as a guesthouse. Up until that stage the guesthouse on the property is being run illegally.”
- Nor did it help the owners to deny the allegations of nuisance behavior by guests. Such denial, said the Court “does not detract from the continued illegality of [their] use of the property.”
- The owners also argued that a complaining neighbour has no right to ask for a court’s intervention without proving that it suffered some “special damage”. The Court disagreed – zoning schemes confer rights on affected property owners and they “are entitled to require that neighbouring owners comply with the applicable zoning scheme”. That’s an important decision – it makes it a lot easier for affected neighbours to get redress.
- The Court also rejected the guesthouse owners’ application for a suspension of the interdict pending the outcome of their permit application.
- The end result is that the guesthouse must close (after a short grace period to allow longer term residents to find alternative accommodation).
Opening a guesthouse? It boils down to this …
Each municipality will have its own bye-laws in regard to exactly what is and what isn’t allowed in each zoning category. Where a formal municipal permit is required to operate a guesthouse, that permit must be applied for and must be granted before the business opens. Otherwise your neighbours can ask a court to close down you down, proving nothing more than the lack of a required permit.
First prize is always to negotiate all your neighbours onto your side from day one, and in any event it’s worth getting legal help for your permit application to ensure your position is unassailable.
And a final note for suffering neighbours
Stand up for your rights, although of course even if you are 100% in the right, going to war with your neighbours should be the very last resort – there are no winners in a fight like that. But if a polite request to “please close your doors” or “please stop disrupting our peace” doesn’t help, seek legal assistance immediately.
P.S. What about Airbnb?
There are grey areas around how zoning restrictions apply to short-term lets in South Africa, and municipalities all have their own requirements for bed and breakfast and other types of guest accommodation. Take advice on what your local council’s requirements and limitations are.
© LawDotNews
November 15, 2017
Employer v Employee: Can You Use Evidence Obtained under Threat of Prosecution?
“… you are going to be a very sorry man you (sic) probably going to sit in jail tonight” (a “dirty dozen threat” quoted in the judgment below)
When we hear of employers and employees at loggerheads with each other in our court system, we normally think of labour disputes – strikes, disciplinary hearings, unfair dismissals and the like.
But at times such disputes end up in our normal civil courts, dealing with issues which potentially apply to all civil claims. An interesting SCA (Supreme Court of Appeal) case provides a good example.
An accused diamond thief sued for R6m
- A business which processes mine dumps to find and then sell rough diamonds employed a ‘Final Recovery Manager’ in a senior position of trust.
- Monitoring of workplace CCTV surveillance raised suspicion that the manager had been stealing diamonds.
- Confronted, he made a videotaped confession, signed a R5m acknowledgment of debt, paid over R530,000 cash as part proceeds of stolen diamonds, and assisted in the recovery of other stolen diamonds. He later gave his employer a copy of his full confession to the police and also consented to a second interview, similarly recorded.
- He was prosecuted but acquitted after the criminal court found that his statement to the police had not been freely and voluntarily made. The CCTV surveillance footage was not put in as evidence at the criminal trial – relevant because the civil court later found it to provide evidence of theft.
- The employer then sued the manager for R6.015m. He objected to the admission in evidence of his various confessions, admissions and statements on the grounds of unlawful duress.
- The High Court however allowed the admissions in as evidence, a decision upheld on appeal by the SCA.
“Spilling the beans” after the “dirty dozen” threat
In his first interview the employee initially denied the allegations of theft, but “spilled the beans” after he was exhorted to tell the truth and was presented with a “dirty dozen” option, including threats of arrest, prosecution, and adverse publicity if he lied.
The SCA held that –
- “The admissibility of evidence in a criminal trial stands on a different footing from a civil dispute”, partially because “a criminal matter is a contest in which the might of the State is pitted against an individual. In a contest of this kind, a bad result for an accused person may lead to a loss of freedom. Such a consequence is incomparably different from any outcome in a civil dispute.”
- “An employer is not only entitled to confront an employee about an allegation of wrongdoing, but is also obliged to do so, even before a formal disciplinary hearing is convened.” That’s because of the basic rule in our law that both sides of a story must be heard and taken into account.
- There were no threats of physical violence nor of anything unlawful.
- What was said to the employee immediately before he began to confess to his theft was not extortion or blackmail, nor was it contra bonos mores (against public policy) – “it did not result in [the employer] exacting or extorting something to which it was not otherwise entitled. The contrary is true.”
- “Even in our law of criminal procedure an exhortation to tell the truth will not exclude a confession … Not even a threat of the probability of arrest constitutes undue influence … After all, the test is whether there is ‘any fair risk of a false confession.’”
The employee had therefore failed to prove that his admissions were obtained by any “legally recognised duress”, nor had his constitutional right to a fair trial been breached.
Clearly, it will depend on the facts of each case whether a threat of prosecution and/or adverse publicity constitutes unlawful duress. Take legal advice before making accusations or relying on any admissions flowing from such threats.
© LawDotNews
November 15, 2017
Creditors and Debtors: Important New Prescription Judgment
“Running into debt isn’t so bad. It’s running into creditors that hurts” (Unknown)
Debts prescribe (become uncollectable) after a specified period of time – 3 years for most run-of-the-mill debts but 30 years for others such as judgment debts, mortgage bond debts, property rates and tax debts. Various other periods apply to specific statutory debts and a few other exceptions – take advice if you need more detail.
It’s important to know that the prescription period can be “delayed” in certain cases. For example where the debtor is a minor or insane, or under curatorship, or out of South Africa etc (there’s a long list).
Prescription can also be “interrupted”, most commonly by serving summons on the debtor or by the debtor making an “express or tacit” admission of liability.
It’s that last scenario we’re going to discuss, because of course it’s both an opportunity for creditors to extend the prescription period, and a danger for debtors waiting hopefully for their debts to prescribe. Unscrupulous but savvy debtors will accordingly try their utmost to avoid making any form of admission of liability.
A very prejudicial “without prejudice” admission
Now a new SCA (Supreme Court of Appeal) decision has just added a significant twist that both creditors and debtors should take note of.
It revolves around the principle that during settlement negotiations we can safely make admissions “without prejudice”. The idea is that, in order to encourage us to avoid the expense, delay, hostility and inconvenience of litigation, we can speak frankly without fear that our admissions can later on be used against us in court. The only exception to that rule has (until now) been that an “act of insolvency” can be proved by admissions made by a debtor in without prejudice negotiations.
Developer v estate agency – R2m at stake
- An estate agency claimed R2.147m in sales commissions from a property developer.
- The developer in turn sued the agency for R1.023m for a variety of counterclaims against it.
- During settlement negotiations the developer admitted its liability for the commission claims but suggested, on a without prejudice basis, that the two sets of claims be set off against each other, and tendered payment of the net balance.
- The agency rejected this offer, a court battle ensued, and the developer raised the defence that most of the agency’s claims had prescribed as being older than three years.
- The SCA rejected the prescription defence, holding that the three year period had been interrupted by the developer’s admission of liability – despite it having been made without prejudice.That’s new law, and it’s important both –
- For creditors to recognise the new opportunity they now have to extend prescription, and
- For debtors to recognise the new danger of hiding behind the “without prejudice” shield when making admissions.
- The end result – the claims haven’t prescribed and the developer must fight on in the main action.
Note that the new exception to the without prejudice rule is limited solely to interrupting prescription. Admissions made without prejudice still can’t be used to prove that you owe money, nor to prove how much you owe. They can only be used to interrupt prescription, and even then as the Court put it: “The exception itself is not absolute and will depend on the facts of each matter. And there is nothing to prevent the parties from expressly or impliedly ousting it in their discussions.”
Lessons for creditors and debtors
Creditors: Prevention as always is a lot better than cure, so avoid arguments over prescription arising in the first place. Don’t delay in collecting debts, suing for damages or recovering any other form of claim. Serve summons on your debtor before you lose your claim forever.
Debtors: We should of course all try to honour our debts. As the Roman writer Publilius Syrus pointed out over two millennia ago “A good reputation is more valuable than money”. But if you plan to fight any claim against you, you lose a valuable defence if you in any way admit liability, “without prejudice” or not.
© LawDotNews
October 18, 2017
How the “Historical Rates” Judgment Affects You
“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 …” (Constitutional Court Order)
How does the recent Constitutional Court decision on “historical rates” affect you in practice?
Understanding the issue
At issue was that some municipalities would force new property buyers to pay the seller’s “old” municipal debts (rates, municipal services etc). So you could buy a house thinking that all you had to pay was the purchase price and transfer costs, and end up having to pay old municipal debts run up by previous owners.
We’re talking potentially big money here – R6.5m in one of the cases in question. And you had to cough up or face losing your home to a sale in execution, as well as threats to disconnect electricity and other services.
Property owners 1, Municipalities 0
In a major victory for property owners, a 2016 High Court decision held that procedure to be unconstitutional. And whilst the Constitutional Court on appeal said there was actually nothing unconstitutional about the legislation in question, it also confirmed that municipalities cannot use it to collect pre-transfer municipal debts from the new owner.
So how does that decision from our highest court affect you?
Buyers
You are no longer the “soft target” for municipalities and you no longer risk having to pay the seller’s historical debts; you are only liable for rates etc after you take transfer. The other side of the coin is that municipal debt write-offs generally are bound to increase, and those losses will be passed on to us all as consumers.
Sellers
To avoid delays in transfer, keep all municipal accounts up to date. Remember you cannot pass transfer without a “clearance certificate” certifying payment of rates etc due for the past 2 years. Debt older than 2 years cannot now be claimed from the buyer so expect municipalities to be extra vigilant from now on in collecting arrear rates and service accounts as they arise. Get legal help immediately if your municipality demands payment of debts older than 3 years – rates prescribe after 30 years, but other debts survive only 3 years (unless of course prescription is interrupted by for example an admission of liability or the service of a summons).
Agents
This decision has been touted as positive for the property market generally and it certainly will reassure any potential buyers holding back from making offers for fear of having to pay huge hidden municipal debts.
Municipalities
“Historical debts”, said the Court, “exist only because municipalities have not recovered them”. Every municipality is obliged to –
- “Collect all money that is due and payable to it”,
- “Implement a credit control and debt collection policy”,
- “Send out regular accounts, develop a culture of payment, disconnect the supply of electricity and water in appropriate circumstances, and take appropriate steps to collect amounts due”, and
- “For the sake of service delivery … do everything reasonable to reduce amounts owing”.
You have, in the Court’s words “a full-plated panoply of mechanisms enabling efficient debt recovery” – use them to stop arrears building up in the first place.
© LawDotNews
October 18, 2017
Security Complexes: Can You Use Telkom Ducting for Fibre?
“Possession is nine-tenths of the law” (wise old idiom)
Optic fibre is bringing “superfast broadband” to an exponentially-increasing number of South African homes and businesses.
And competition in the field is fierce. Which is great for us as consumers, but if you live or work in a “community scheme” there’s a catch. How does your chosen supplier physically run fibre cabling to your individual properties?
Laying new underground ducting will mean a lot of cost and a lot of disruption, so you’ll want to use existing infrastructure if you can, and Telkom’s ducting is likely to be a prime candidate. But before you rush ahead and use it, consider this recent High Court decision which confirms that Telkom has the right to control who uses its ducting and other equipment … and who doesn’t.
Don’t touch me on my ducting
- Telkom had, during the initial development of a residential security estate, installed copper cables to individual houses via ducts and associated manholes.
- The Home Owners Association (HOA) was unable to agree with Telkom on the provision of fibre to the estate and gave the contract to Vodacom, which then asked Telkom for its consent to share its ducting system. A dispute arose as to whether or not Telkom was obliged to share its facilities, and this was referred to ICASA for resolution.
- Before ICASA had resolved the dispute, the HOA went ahead and allowed Vodacom to use Telkom’s ducting, with the result that Telkom applied to the High Court for a “spoliation order” restoring possession of its ducting to it.
- Long story short, the Court ordered that – pending resolution of the dispute by ICASA – the HOA had to restore possession of the ducting to Telkom, and Vodacom had to remove all its cabling and equipment.
The bottom line is that until the ICASA dispute is finalised (and, if an appeal is lodged against the Court’s decision, the outcome on appeal) we won’t know for certain the extent if any to which Telkom is obliged by law to share its ducting with other fibre suppliers, and if so under what conditions.
What we do know, for now at least, is that Telkom has been confirmed as being the legal “possessor” of such ducting despite it being installed on private land and irrespective of who has legal ownership. And since our law does not allow you to deprive a possessor of possession without consent or legal process, you need Telkom’s approval before you allow another supplier to use its ducting.
Importantly, the Court also confirmed that Telkom has a statutory right to demand access to the ducting, subject only to it exercising that right “respectfully and with due caution”.
© LawDotNews
October 18, 2017
Do You Need an “Advance Directive” or a “Living Will”?
If you don’t want to be kept artificially alive – without your consent and perhaps in pain and distress – long after your medical condition becomes hopeless, you need to communicate your decision now to the doctors, hospitals and loved ones who will be caring for you at the end.
Incapacitation can strike without warning and at any time, so prioritise this whilst you are still mentally and physically competent to express your wishes.
Living Will v Advance Directive: What’s the difference?
Both are “advance health care directives”, expressions of your wishes for future care. Both become effective only when you lose the ability to communicate for yourself. They are a gift to your loved ones and medical carers, helping them to make the hard decisions they will need to make in order to spare you the nightmare of suffering while your life is pointlessly prolonged.
An Advance Directive differs from a Living Will in that it enables you, in addition to giving detailed instructions on what medical treatment you do and do not consent to in various scenarios, to also appoint a ‘Medical Proxy” (normally a close family member) who will make medical decisions for you. Appoint both a Primary and an Alternate proxy in case your Primary choice is unable or unwilling to act at the critical time.
Ask your doctor for guidance if you are unsure about what to do here, and for advice on the implications of the specific advance directions you are giving. You might for example decide that you want aggressive intervention in some eventualities but not in others.
Are these advance health care directives recognised by law?
We need to draw a clear distinction here. Euthanasia and “assisted suicide” are still generally unlawful in South Africa, quite apart from conflicting with many people’s moral/cultural/religious beliefs.
But whereas euthanasia and assisted suicide are said to involve an active intervention to terminate life, typical advance health care directives merely express your wish that when the time comes you be allowed to die naturally and with dignity, in other words that nature be allowed to take its course. We must all decide for ourselves the extent to which we are comfortable with that.
But will our courts recognise the legal enforceability of these directives? In 2016 the Supreme Court of Appeal, whilst finding that euthanasia and assisted suicide remain unlawful, made several comments that perhaps bode well for the acceptance of advance directives. So whilst their legal enforceability cannot be guaranteed until our courts rule specifically and definitively on the matter, the signs certainly seem more positive than negative.
In any event, in practice you will greatly increase the chances of your wishes being honoured at the end if you have confirmed beforehand with your loved ones and medical carers that they will do so.
You still need a “Will”!
Note that Living Wills and Advance Directives are very different to a “Last Will and Testament”, in which you provide for distribution of your assets to your heirs after you die. You need both.
In closing, and this is important …
- Make sure that everyone knows how to find your Advance Directive or Living Will in a hurry. Ideally lodge signed originals with all the role-players.
- Diarise to review your directions at least annually, and if you change your mind about anything, destroy all the old originals and replace them with new originals specifically revoking all previous directions.
© LawDotNews