November 11, 2019
November 2019 Directors Note
Winning the 2019 World cup, with such courage. Courage means someone has your back. Today the Bokke played with courage and they had each other’s backs. Because of this each player’s confidence soared as the game progressed. The slogan “stronger together” came to life like never before.
The team is always stronger than the sum of the parts. The Bokke, a team second to none. Rassie the coach, the strategist, planning, communicating his plan, and demanding the best players that suits his plan. They played the Rassie way. Many have criticized players for the way they played in the world cup. They sucked it up and played the Rassie way. Today the Bokke are the World Champions.
The most amazing thing is Rassie was appointed with specific instructions/vision. Transformation needs to be embraced and be reflected in his team selection. He embraced it and planned accordingly. The urgency with which he worked the change needed, not only to win, but also to do it the South African way, was phenomenal.
He turned a team, a country (dare I say) around in 18 Months. Everybody else always talks about a four year plan to prepare for the next world cup. Rassie believed in the vision, he communicated the vision, and he got the buy in from his selected players, together they practiced and implemented the game plan and together they won the 2019 World cup.
What lessons can we learn from this fantastic world cup 2019 journey?
- Leaders that have the vision of the new normal and the urgency to follow through on the vision.
- Courage to change when change is needed to become that new normal.
- To communicate the new normal.
- Team players with courage and discipline to embrace the change needed to become our new normal.
- A plan that shows the way to our new normal.
- The courage to execute the plan that creates the new normal.
- The result to lift the Cup sooner rather than later.
November 11, 2019
“Seller’s Remorse” and “Subject to Sale of the Buyer’s Property” – Can They Sink the Sale?
“If you don’t like where you are, move. You are not a tree” (Jim Rohn)
The upcoming festive season, with its mass migrations of happy holiday-makers to their dream destinations, has always been a busy time for both sellers and buyers.
In these hard times however, an increasing number of sellers are feeling pressured to accept offers well under their expectations, so cases of “seller’s remorse” are much more likely now than they have been for many years. The question is, just how easy or difficult is it for a seller to escape a sale agreement signed in haste?
Equally common no doubt are sales “subject to the sale of the buyer’s property” – for a specified amount and within a specified time period. That raises an important question – must the buyer’s transfer actually be registered in the Deeds Office within the deadline period, or is enough that the buyer has signed a sale agreement for his/her property?
A recent High Court decision addressed both those questions, as well as two others relating to defences raised by a seller who changed her mind shortly after accepting the buyer’s offer (the judgment doesn’t say why she changed her mind, but the fact that a bank offered the buyers a bond of R3.9m suggests that the sale price of R2.6m may have been very low).
A serious case of seller’s remorse, and the 3 defences raised
In the case in question the seller had second thoughts shortly after accepting a R2.6m offer for her house from a couple who were married in community of property. When the seller then refused to pass transfer to the buyers, they asked the High Court to order her to do so.
Any one of the three defences put forward by the seller to the buyer’s claim could have sunk the sale, so let’s have a look at how the Court answered the three main questions they raised –
- Does “subject to successful sale of the buyer’s house” require transfer?
The sale was subject to the “successful sale” of the buyers’ property within 60 days, failing which the sale would lapse. The buyers had indeed “sold” their house by entering into a sale agreement for it, and their buyers had taken occupation. But, so the seller argued, that was not a “successful sale” because actual Deeds Office transfer hadn’t been registered within the 60 day period.
Bad defence, ruled the Court, commenting: “I cannot think for a moment that the parties had the intention that the [buyers] were to find a purchaser for the property, that they had to sign a deed of sale after a purchaser was found, that possible suspensive conditions in that deed had to be fulfilled, and that the registration of transfer into the purchaser’s name, all had to take place within the limited period of 60 days only … I therefore find that the phrase ‘successful sale’ in the present agreement means nothing more than the successful signing of a deed of sale” (emphasis added).
On a practical note, both seller and buyer in any property sale should have their attorneys confirm that the “subject to” clause specifies clearly what exactly is required. Is a signed sale agreement enough? Must all suspensive conditions have been met? Or must actual transfer have been registered? Provide enough time for your agreed requirements to be met, and cover scenarios like an unexpected glitch or delay in the buyer’s transfer (neither buyer nor seller wants to be in the position where a buyer can’t pay the purchase price when transfer is eventually tendered).
As a less important side note, the sale in this case was also subject to another suspensive condition. This was a “bond clause” requiring the buyers to obtain a bond within 30 days – which clause, held the Court, had been fulfilled by a bank informing the buyers in writing that their application for a mortgage loan was approved for a total amount of R 3.9m, well over the required R2.6m. - Married in community of property – must both spouses sign?
The buyers being married in community of property, the seller argued that the sale agreement was invalid because only one spouse had signed it. Not so, held the Court, “both husband and wife have equal capacity to perform juristic acts and equal powers to manage the joint estate, which powers can in most cases be exercised without the consent of the other spouse”.
The Court found that this was not a case requiring such written consent (there are conflicting court decisions on this point so ask your attorney for specific advice if this question arises in your sale*), therefore the signing spouse “had full capacity to bind the joint estate by signing the Offer to Purchase without the written consent of the Second Applicant”.
*(Best practice of course is to avoid any possibility of dispute by getting both signatures wherever possible!) - Must acceptance of an offer be communicated to the buyer?
The seller claimed to have called her estate agent 30 minutes after signing the agreement, instructing her to withdraw it and terminating her mandate as agent. Thus, argued the seller, the acceptance of the offer was never validly communicated to the buyer and no contract ever came into existence.
Not so, held the Court. Although our law is that “unless the contrary is established, a contract comes into being when the acceptance of the offer is brought to the notice of the offeror”, no communication of acceptance was necessary in this particular case. The offer was headed “Offer to Purchase (This constitutes an Agreement of Sale upon Acceptance by the Seller)” and it stated that “the Seller agrees to sell the immovable property, together with the improvements thereon, to the Purchaser whom purchases from the Seller on the terms and conditions as set out in this Agreement.”
The unavoidable inference, said the Court, was that the parties intended “that the mode of acceptance would be the signature of the First Respondent, and nothing more.”
“Sign in haste, repent at leisure”
Our law as a general rule holds you to your agreements, so sign a sale agreement and you will have an uphill battle getting out of it.
As always speak to your attorney before you sign anything. Proper advice upfront is the best way to avoid seller’s remorse (and buyer’s remorse for that matter), grey areas that risk dispute and litigation, and uncertainty over whether your rights are properly protected in the sale agreement.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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November 11, 2019
About To Marry? Don’t Forget Your ANC and the 3 Types of Marriage
“And she’s got brains enough for two, which is the exact quantity the girl who marries you will need” (P.G. Wodehouse)
Wedding Season being once again well and truly upon us, the chances are high that even if you yourself aren’t contemplating marriage you know of someone who is. If so, please think of forwarding this article to them.
Planning and preparing for your wedding is an exciting and busy time, and your ‘To Do’ list will be a long one. Plus you will be stressed for time, and distracted, and it will be tempting to put the “boring” legal bits and pieces low down on your list.
Don’t do that! A visit to your lawyer is an essential, not a “nice to have” to be squashed in between “Book Airbnb for Auntie Jo” and “Bath dog”. First on the agenda for your legal consultation will be an ANC…
Your ANC – what it is and why it is vital
Your ANC or “antenuptial contract” is an agreement you enter into with your future spouse, before you get married, which regulates your financial (and to some extent your personal) affairs.
Do not be put off the idea of an ANC because you think it might be an admission that your marriage may fail. For two very good reasons it is nothing more nor less than a vitally important part of your future planning –
- Firstly, no matter how strong your marriage may be, our divorce statistics make it very unwise to discount the possibility – however remote – that for some unforeseeable reason and at some unforeseeable time in the future, one or both of you will be visiting a divorce lawyer. Whose first question will be “Let me see your ANC”.
- Secondly, an uninformed choice now will have serious consequences for you, for your spouse and in due course for your children both throughout your marriage and when (not if) one of you dies.
Choosing the marital regime that is right for you
Our law allows you three options, which we discuss below.
Bear in mind that this is a summary only and that no article can do full justice to the many individual factors you should take into account. That’s why a visit to your attorney – well before you actually tie the knot – is vital. Ask what the right option is for your particular needs and circumstances, and have your ANC tailored accordingly.
Your 3 choices, and a trap for the unwary
- Marry in community of property: All of your assets and liabilities are merged into one “joint estate”, in which each of you has an undivided half share. Everything (with only a few specific exceptions) that you bring into or acquire during your marriage falls into this joint estate. You will need your spouse’s written consent for some important transactions. On divorce or death the joint estate (including any profit or loss) is split equally between you, regardless of what each of you brought into the marriage, or contributed to it thereafter. If one of you runs up debts or gets into financial difficulties, it is the joint estate that must pay – you could lose everything if your joint estate is sequestrated. That all makes this option unsuitable for many couples. The big danger for the unwary is that it is the default regime – so you will automatically be married in community of property if you don’t specify otherwise in an ANC executed before you marry.
- Marry out of community of property without the accrual system: Your own assets and liabilities, both what you bring in and what you acquire during the marriage, remain exclusively yours to do with as you wish – so you don’t need your spouse’s consent for any of your own transactions. You are not liable for your spouse’s separate debts and if your spouse’s estate is sequestrated you can claim your separate assets back (you will need to prove that they are indeed yours). Note that the “accrual system” (see option 3 below) will apply to you unless your ANC specifically excludes it. Excluding accrual will be the right choice for some, but be aware that without accrual the poorer spouse (usually a spouse whose contribution to the marriage was more on the home-making side rather than financial) risks being left destitute after many years of marriage.
- Marry out of community of property with the accrual system: Firstly, although this is often seen as being the fairest and most popular option for modern marriages, it is not necessarily the best choice for everyone. As with the previous option, your own assets and liabilities remain solely yours, you don’t need your spouse’s consent for any transactions relating to them, and you can protect your own assets from your spouse’s creditors. On divorce or death you share equally in the “accrual” (growth) of your assets (with a few exceptions) during the marriage, as the example below illustrates –

Already married?
Different principles apply to your marriage if you were married before 1 November 1984 – ask your attorney for details.
If you for any reason want to change from one marital regime to another, or if you want to enter into a “postnuptial contract”, that may be an option for you – ask your attorney.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
November 11, 2019
Landlord vs Tenant: When Can You Cut Electricity or Change the Locks?
“Spoliation is the wrongful deprivation of another’s right of possession. The aim of spoliation is to prevent self-help. It seeks to prevent people from taking the law into their own hands … The cause for possession is irrelevant – that is why a thief is protected … The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute” (extracts from a 2012 Supreme Court of Appeal decision)As a landlord in dispute with your tenant you may well be tempted to avoid the delay and cost of litigation by taking your own eviction or enforcement action. Bad idea. No matter how good your overall case may be (or how good you may think it is), taking the law into your own hands automatically puts you in the wrong. Let’s look at how that works, firstly the theory of it and then with reference to a practical example recently decided by the High Court.
The tenant’s right to immediate return of possession
Our law requires that you approach a court for assistance; self-help is not an option. So if you remove the tenant’s access to the leased premises without a court order, you face having to immediately restore possession to the tenant via a “spoliation order”. The important thing is that at this stage the court has no interest in how strong or weak your actual case against the tenant is. That you can fight about in a full court action down the line. All that counts now is how you dispossessed the tenant, not whether you are the owner nor whether you have any legal right to possession. So to succeed in obtaining a spoliation order, all the tenant has to prove is –- That he/she was in “peaceful and undisturbed possession”, and
- That he/she was “unlawfully deprived of that possession.” The critical question here is whether or not the tenant consented – freely and genuinely – to the dispossession. If so, the dispossession was lawful. If not, it was unlawful. Thus spoliation “may take place in numerous unlawful ways. It may be unlawful because it was by force, or by threat of force, or by stealth, deceit or theft” – or just without consent.
The internet café and the self-help landlord
- An internet café business owner was locked in dispute with her landlord over its method of electricity billing.
- The landlord’s response was firstly to cut electricity to the premises, then to change the locks.
- After trying without success to resolve the dispute, the tenant applied for a spoliation order.
- The landlord did not dispute that the applicant was in possession of the premises, nor that he had dispossessed her with neither consent nor court order.
- What the landlord did argue was that the tenant’s application was not urgent, that it should have been brought in the magistrate’s court and not in the High Court, and that it was really not about spoliation but about the tenant trying to enforce her rights in terms of the lease.
- Rejecting all these contentions, the Court held that the landlord had committed two separate acts of spoliation –
- The first when it disconnected the electricity supply thus denying the tenant use of the premises – “a limitation of her rights as a possessor” and
- The second when it changed the locks to the premises, thus dispossessing her entirely.
- The end result – the landlord must pay all costs, immediately restore possession of the leased premises to the tenant, and immediately re-connect the electricity.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
© LawDotNews
November 11, 2019
Dementia and Incapacity: What is a Power of Attorney and is it Forever?
“The number of cases of dementia is estimated to almost triple by 2050” (World Health Organisation)Although the actual prevalence per capita of dementia is reportedly on the decline, aging populations ensure that it is becoming more and more of a problem in society – for older people, their families and caregivers. If someone close to you (normally an aging parent or relative) needs – or may in the future need – assistance with their financial affairs, your first thought will probably be a power of attorney by which the “principal” appoints an “agent” to act for him/her, either for a particular purpose (a ‘special power of attorney’) or generally (a ‘general power of attorney’). You may well have the same thought if you yourself are approaching old age and starting to plan for your future needs. A power of attorney is certainly a quick, cheap and easy solution but be careful – it’s only a temporary one. It is not “forever”!
The downside – automatic termination (just when help is most needed)
Of course a principal can cancel his/her own power of attorney at any time, but what is not so well known is that it terminates automatically if and when the principal –- Dies (an executor is then appointed); or
- Becomes insolvent and his/her estate is sequestrated (a trustee is then appointed); or
- Becomes mentally incapacitated in the sense of being no longer able to make his/her own decisions for whatever reason – perhaps a stroke, coma following an accident, mental illness, dementia, Alzheimer’s, general age-related diminishing capacity etc.
So what are the alternatives?
- The High Court can appoint a “curator” when a person becomes unable to manage his/her own affairs. A curator bonis handles all the person’s financial affairs, a curator ad personam his/her personal affairs (such as giving consent for medical treatment, where to live etc). Unfortunately curatorships are costly, prone to bureaucratic red tape and delay, paternalistic and, being public, demeaning to the principal.
- A simpler and cheaper alternative is the appointment by a Master of the High Court of an “administrator” in terms of the Mental Health Care Act. An administrator only has power to deal with the person’s property (not personal affairs), and this alternative is only available in cases of actual “mental illness” or severe/profound intellectual disability, and only for smaller estates (assets up to R 200,000 and annual income up to R 24,000).
- A trust to address the purely financial aspects might also be worth considering whilst the person in question still has legal capacity. Take advice however on the costs, tax and other implications.
What about an “enduring” or “conditional” power of attorney?
In 2004 the South African Law Reform Commission recommended changes to our law to allow for alternatives like –- An “enduring power of attorney” (or “EPA”) which would remain valid despite the subsequent incapacity of the principal; and
- A “conditional power of attorney” which would come into operation only on the incapacity of the principal.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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