The small guy's attorney - Darrolls Attorneys

HOW EMPLOYEES SHOULD PREPARE FOR A DISCIPLINARY HEARING

2011-05-03T11:00:00.000+02:00

A. INTRODUCTION

1. Many employees find themselves faced with the prospect of appearing at a disciplinary hearing. Unless they are members of a trade union that is present in the workplace, they find themselves without any professional assistance and have to rely on information gained before the hearing and at best the support of a colleague at the hearing itself.

2. A disciplinary hearing can be a make-or-break situation for many an employee. It can mean the difference between continued employment or searching the market for months, even years, looking for another job. It is not a process to be taken lightly. You must prepare for the hearing like a professional. When you enter the room in which the hearing is to take place, you must be thoroughly equipped for what you need to do. In a sense, what this article attempts to do is to make you your own lawyer to the extent that it is possible in such a short time.

3. Many employees have approached me for assistance in this situation. Their dilemma is that unless they have a trade union representative or colleague with experience of these things, they cannot have any expert representation. They are vulnerable - Daniel facing the lions. That is why I have prepared this guide to assist them in the absence of an attorney or labour expert at their side when appearing before a disciplinary hearing.

4. Please do not be put off by what you might think are a complicated set of requirements. I have simplified these requirements and, in their essence, the requirements themselves are not complicated. The hearing is not a high court trial and no one expects you to conduct yourself as a professional advocate. On the other hand it can only be to your benefit if you acquaint yourself with the way disciplinary hearings work. That will enable you to present your case in the strongest way you can.

B. WHAT SHOULD HAPPEN BEFORE A DISCIPLINARY HEARING ?

1. Your employer needs to properly investigate the allegations against you to satisfy itself that there is a reasonable amount of evidence against you;
2. you then need to receive an official written notification of the disciplinary enquiry. This notification should indicate the time, date and place of the hearing.
3. You should have at least three business days to prepare your defence;
4. the notification needs to set out the charges against you. The charges should be clearly phrased to ensure an understanding of the exact allegation against you. It should also refer to the clause of the employer's code of conduct that creates that offence, unless the offence is one which all reasonable persons would recognise as such;
5. the notification must also set out your other rights, namely –

5.1 your right to be present and to state your case;
5.2 your right to representation by a trade union representative or a colleague;
5.3 your right to present evidence in your defence;
5.4 your right to call witnesses;
5.5 your right to respond to and cross-examine the employer's evidence and witnesses;
5.6 your right to an interpreter, if required.

C. WHAT HAPPENS AT A DISCIPLINARY HEARING ?

[Notes:
1. The description below is a procedure that should be followed in medium to large organisations. In smaller organisations, it is impractical to comply with all these guidelines but the spirit of a fair hearing in which you receive full opportunity to state your case should nevertheless be satisfied.
2. It is not for you to prove your innocence. The employer bears the burden of proof to establish your guilt. Within the constraints of integrity, do not voluntarily offer evidence of your innocence until the employer has provided evidence that strongly indicates evidence of your guilt.]

1. The major parties at a disciplinary hearing consist of –

1.1 an impartial chairman. He should not have been involved in any dispute between yourself and your employer;
1.2 the employer's representative - usually the human resources representative or a senior and uninvolved line manager; and
1.3 you, the employee, and preferably also your trade union representative or colleague to assist you.

2. The Chairman should -

2.1 introduce himself and the parties present;
2.2 ensure that the time, place and persons present are duly recorded;
2.3 state the purpose of the enquiry;
2.4 ensure that a record of the proceedings is kept during the hearing (you could do well to bring along your own tape recorder so that you have your own independent record of the proceedings;
2.5 satisfy himself that all your rights have been recognised;
2.6 request you to indicate whether you believe you are guilty or not guilty of the charges.

3. If you plead guilty (not advisable except in the clearest of cases), the chairman will have to decide what sanction (punishment) to apply and therefore should –

3.1 satisfy himself that you understand the consequences of the guilty plea;
3.2 ask the employer's representative to offer facts or reasons why you should receive a heavy sanction (aggravating factors);
3.3 ask you to offer facts or reasons (mitigating factors – see Section H below) why you should receive a light sanction (eg a warning);
3.4 have a copy of the disciplinary code and procedure and be provided with your disciplinary and service records;
3.5 either announce the sanction immediately or adjourn the hearing to a predetermined time in order to do so;
3.6 if the sanction is dismissal, the chairman needs to remind you of your right to appeal either in terms of the internal disciplinary procedure or else, if this does not exist, to the CCMA;
3.7 advise you to obtain your written dismissal notice and certificate of service from Human Resources. You should also tie up any other loose ends with your Employer at this time;
3.8 draw up a disciplinary enquiry record and report & date it before providing a copy of it to the employer and yourself.

4. If you plead not guilty, the chairman should follow the procedure below –

4.1 You should be asked to hand in your “bundle of documents” (ie all the documents, emails etc relevant to the issue, with page numbers and a contents page giving the name of the specific document as well as its page number) to both the chairman and the employer’s representative.

4.2 After the employer’s representative has given its opening statement (if it chooses to do so) you should present your own opening statement, in which you outline your case briefly. It is important for you to do this. I outline in paragraph D below what you need to do to prepare it.

4.3 The employer and then you will in turn present your substantive cases by way of the evidence of as many witnesses as you each intend to call. I outline below in section F what you need to do to prepare for this.

4.4 You will be able to cross-examine each of the employer's witnesses (See section E). They will have the same opportunity when you call your witnesses.

4.5 Once all the witnesses have given evidence in turn, the employer will be given a chance to make a closing statement after which you will be able to do the same. The employer will again be able to address the hearing, but only concerning new points that you have raised in your closing statement. I outline below in section G what you need to do to prepare this.

4.6 The chairman should then –

4.6.1 ensure that the parties are satisfied with the manner in which the enquiry has been held;
4.6.2 ensure that there is no further evidence to be presented or questions to be raised;
4.6.3 either announce his verdict immediately or adjourn the hearing and said a time for recommencement to give him a chance to consider his verdict;
4.6.4 if the latter, recommence the hearing and announce his verdict;
4.6.5 if the verdict is not guilty, that is the end of the matter;
4.6.6 If the verdict is guilty, the chairman should follow the steps described in clause 3 above.

D. PREPARING AN OPENING STATEMENT

1. The Importance of an Opening Statement:

The opening statement is often neglected. Its tactical value is under-estimated. The opportunity to use an opening statement begin the process of persuasion is often not exploited fully. It can play an important role in that process. It introduces to the chairman the issues and the evidence to be led on the issues, making the chairman's task easier and more focused. You have a right to make an opening statement. Insist on being able to exercise that right.

2. The Purpose of the Opening Statement:

This is to explain what the case is about. It enables the chairman to place the details of the evidence given in the context of your case as you have already explained it. You give him an indication of what case you intend to establish and how you intend to do so with the evidence at your disposal. Failing this, the chairman will not know beforehand the facts that will be proved and the evidence available to establish them. If he receives the evidence piecemeal, he can easily obtain a skewed view of the overall picture. Your opening address will enable him to have a better grasp of the issues so that the significance of each item of evidence will be apparent.

The opening address is not an argument. It is an opportunity to outline the facts that you hope to prove. It must be brief (± 5 mins). State the facts simply, without adornment, so that they speak for themselves. Deal candidly with any weaknesses in your case while coupling it with a compensating fact that diminishes the damage and gives the chairman a context in which to place the weakness servitude has less of an impact on your case. Avoid argument and exaggeration. Use a moderate - even understated - tone.

3. The Structure and Content of an Opening Statement

An opening statement must have a logical structure. It needs to explain a plain story in clear language. It must also put all the important part of the story in a proper context. There must be order and clarity. I suggest the following –

3.1 State what the issue is: eg “Mr Chairman, this hearing is about my alleged misconduct in that I am supposed to have…… [here describe the central allegation/s against you]”.
3.2 Summarise the material facts of what your employer is alleging and point out that it is your employer’s responsibility to prove those facts “on a balance of probabilities”. This means that your employer’s allegations must be at least 51% more likely than that your explanation of what happened.
3.3 Summarise the material facts you are alleging. Consider setting out the timeline of the relevant events. If you like, do it in a written schedule and hand this to both the chairman and your employer’s representative.
3.4 Identify the witnesses you will call and summarise the evidence that each will give.
3.5 Finally, state to the chairman your relief sought. In other words, what you would like the chairman’s findings to be. I presume it would be a finding of not guilty.

E. PREPARING YOUR QUESTIONS FOR THE EMPLOYER'S WITNESSES (Cross- Examination)

1. This phase of the hearing takes place after your employer has finished asking the questions of its witness. He will have done this in order to enable the witness to provide the facts of which he has knowledge to the disciplinary hearing. You now have a chance to ask that witness questions that will serve to challenge the truth of what he has been saying or to evoke answers to issues that he has failed to mention. This is known as cross-examination.

2. You cross-examine opposing witnesses in order to make your own case better.

3. The purposes of cross-examination are pursued through questions which –

3.1 encourage or oblige the witness to provide favourable evidence for you;
3.2 test and even hopefully discredit the reliability of the evidence the witness gave when being questioned by the employer's representative (eg contradictions);
3.3 put your version of the disputed facts to the witness so that the witness may comment. It is important to do this because, if you do not, the fact that you have not allowed the employer's witnesses to comment on allegations and/or evidence that you intend to present, will count against you.

4. Cross-examination, like an opening statement, is a tool of persuasion. It is used to try and have your evidence accepted and the employer's evidence rejected. It is a tough assignment. Few witnesses are suddenly likely to give you a gift of agreeing to the submissions that you put to him in support of your own case. This is especially true if his change of evidence will be against his own employer.

5. While the employer’s witness is giving his “evidence-in-chief”, you should take notes. Create a margin down the side of the page (most professionals prefer the right side for some reason) so that you can mark any part of the witness’s evidence that you want to challenge in cross-examination.

6. Your first priority in cross-examination should be to entice favourable evidence from an opposing witness. At the least you will need to –

6.1 be courteous to the witnesses;
6.2 lead the witness to the answers by asking questions that suggest the answer you are seeking;
6.3 be satisfied with a significantly favourable answer. Don’t push things too far. You might lose the advantage by doing so. A bird in the hand is worth two in the bush. Do not flatter the witness by continuing an unrewarding cross-examination. Many a good cross-examination has been ruined by a question too many;
6.4 keep the questions short, asking for, or suggesting, one fact at a time.
6.5 avoid arguments with the witness. Ask questions in such a way that you invite facts rather than arguments or explanations.

F. PREPARING YOUR QUESTIONS FOR YOUR OWN WITNESSES (Evidence-in-Chief)

1. This is the most important phase of the hearing for you. It enables you to put forward your own version of the facts, answer the employer's version and strengthen your own witnesses.

2. The biggest danger in this phase of questioning is asking what is called a “leading question”. This is simply a question that indicates the answer that you are seeking from the witness. The facts have to be provided by the witness not you. You must not therefore suggest what he should say in reply to your question. The absence of leading questions enables the chairman to evaluate the evidence of your witness on its own merits instead of in response to your own suggestions. If you start your questions with where? When? What? Who? Which? How? or Why? you will avoid leading questions.

Another way of avoiding leading questions is to present the witness with an alternative. Instead of asking “you saw him drive away didn’t you ?” ask “did you or did you not see him drive away?”

3. You must plan the following carefully –

3.1 be clear in your mind what facts you want to establish with each witness;
3.2 plan a structure for the questions to put each witness. (Do a rehearsal with your witness if you can.) This normally involves –
3.2.1 introducing the witness. (ie give some easy questions – name? address? Etc) ;
3.2.2 have the witness explain why he/she can testify to the facts you want to submit to the hearing (eg she was at the scene, works in the same department, etc.);
3.2.3 deal with the subjects you have hopefully previously agreed with the witness;
3.2.4 lead the evidence on each topic in chronological order (exhaust the evidence on a given topic before moving onto the next; ie keep each topic in a separate category);
3.2.5 if necessary, deal with the employer's version (if you want to take the sting out of the anticipated cross-examination of your witness by the employer’s representative, ask your witness questions dealing with the other side's version);
3.2.6 anticipate topics of cross-examination by your employer and discuss these with your witness without actually telling her what to say.
3.3 If you can, obtain a statement from the witness that sets out all the evidence that witness will be providing. You can then use this as a guide for the questions that you ask that witness.
3.4 If necessary, inform the witness that he or she should address the chairman not yourself.

4. Some tips to apply during examination-in-chief

4.1 do not ask loose or vague questions rather than those that are simple and short and which elicit only one fact at a time;
4.2 use simple everyday language rather than clichés or slang;
4.3 make eye contact with the witness;
4.4 where possible or useful, supply visual aids, demonstrations or documents

G. PREPARING YOUR CLOSING ADDRESS

1. The purpose of your closing address is to persuade the chairman to accept your submissions regarding the case and to reject those of your employer. You want the chairman to agree that -

1.1 your view of the case is supported by the facts; and
1.2 your opponents view is either not supported at all or is less probable than yours.

2. Your planning for the closing argument should start long before the hearing. If you're not ready to give your closing statement before the hearing begins you are not ready for the hearing During the preparation, and the hearing itself if necessary, you should collect and organise the facts to support your case.

3. You need to –

3.1 identify your objectives for the hearing and the obstacles you need to overcome to achieve them;
3.2 identify the relevant and helpful facts;
3.3 anticipate your employer’s goals;
3.4 anticipate your employer’s factual material;
3.5 draft a skeleton giving structure to your closing argument. If necessary, adapt it as the hearing unfolds.

4. The employer’s representative will generally address the chairman first. You then have the opportunity of replying. After that the employer’s representative can then briefly address any new material that you may have dealt with in your address.

5. A suggested structure for your closing address is the following –
5.1 state the issues;
5.2 point out that the employer needs to make a case against you on a balance of probabilities;
5.3 list the evidence in support of your case;
5.4 deal briefly with the employer's case – eg its weakness, its lack of credibility, its lack of proof and other defects. If necessary, compare the two cases to point out why your case should be preferred;
5.5 if there are any relevant rules or legal principles that you are aware of, apply these to the facts and the verdict you are claiming;
5.6 explain the reasons for the actions of the employer - why their actions were consistent with their self-interest, announced intentions, past behaviour, lifestyle or other understandable motivations;
5.7 state clearly the decision you want the chairman to make and why he should do so.

6. Style and Tactics in your Closing Address
6.1 be natural; be yourself;
6.2 be confident and competent, which you will be if you prepare yourself well;
6.3 speak without emotion but not without some passion;
6.4 use an orderly presentation;
6.5 have a clear view of what you are going to say;
6.6 keep your strong points for the beginning and the end;
6.7 make concessions where appropriate;
6.8 deal with the other side's case briefly;
6.9 be honest, be brief.

H. ADDRESS IN MITIGATION

1. Mitigating Factors are any evidence presented regarding your character or the circumstances of the offence, which would cause the chairman to decide on a lesser sanction. You can call witnesses if you think it necessary for them to support your allegations.

Mitigating factors can be divided into the following -
1.1 Factors affecting you personally, such as
1.1.1 age;
1.1.2 personal circumstances;
1.1.3 length of service;
1.1.4 disciplinary history;
1.1.5 state of health;
1.1.6 how close to retirement;
1.1.7 financial circumstances;
1.1.8 level of education;
1.1.9 attitude to the offence (eg remorse);
1.1.10 willingness to make amends, if relevant.

1.2 Factors relating to the offence itself-
1.2.1 the circumstances surrounding the breach of the rule;
1.2.2 urged on by others ?

1.3 Factors relating to the employer
1.3.1 would the sanction imposed be consistent with previous similar cases involving other employees ?
1.3.2 your position with the employer.

2. Aggravating Circumstances

Aggravating Circumstances are those circumstances that count against you, eg the seriousness of the offence seen in the light of your length of service, your position in the company, to what degree did any element of trust exist in this employment relationship, etc.) These will be submitted to the chairman by the employer's representative

I. FINALLY

Before you hear the verdict, and perhaps even more so afterwards, you might be inclined to experience regrets the moment the hearing ends. The point you forgot to make, the question you forgot to ask, the preparation you didn't have time to perfect, can come rushing to your mind.

At least you will be able to say, “no matter the outcome, I know that I did everything I could to present my case as strongly as possible”. I hope this guide will have helped you to do so.

How to apply for a bond

2011-04-15T18:31:00.000+02:00

Doing it the lazy way this week - see below

PART OF THE MONEYWEB NETWORK
Friday, 15 April 2011

How to apply for a bond
Marius Crook*
06 April 2011

A simple step by step guide.

Applying for a bond is often one of the most important and daunting processes one can go through. In order to successfully secure a bond, it is essential for potential home buyers to ensure that they take the correct steps. Marius Crook, regional sales manager for ooba, South Africa's leading bond originator, supplies an easy to follow step by step guide to applying for a bond.
Step 1: Know your bond limitations
Ensure that you know what you can afford. Contact your bond originator consultant, complete the interview form and provide the necessary supporting documentation to receive the pre-approval certificate. With this in place you are now in a position to officially enter the property market.
Step 2: Find your dream home
A good tip for finding your ideal home is to narrow your search to a particular area, learn about its history, schools, security measures and other unique selling points. Once you have found your dream home ensure that it is within your price bracket.
Step 3: Sign offer to purchase
Once you have selected your home, put in an offer to purchase (sometimes called a sale agreement or deed of sale) with the real estate agent and seller and await acceptance from the seller. Once the seller accepts the offer the bond process can begin.
Step 4: Submit to banks
Contact your bond originator representative and provide a copy of the signed and accepted offer to purchase. The consultant will then proceed to submit your application to various banks.
Step 5: Bank assessment
Once the bond has reached the bank(s), the bank will then will assess the application and respond with a quotation or decline notice. One of the advantages of applying for a loan through a bond originator is that the purchaser only submits the information and documentation once. The consultant will then forward it to the bank(s) of the purchaser's choice.
Step 6: Accept or decline
The purchaser will then have five days in which to accept or decline the bank's quotation.
Step 7: Registration
Once the bond offer has been accepted by the purchaser, the bank will instruct attorneys to proceed with the registration of the bond. At the same time, the estate agent or seller will instruct the transferring attorney to proceed with the transfer of the property from the sellers name to the purchasers name. The transfer of the property and the registration of the bond will take place simultaneously.
Step 8: Deeds office
The documents will then need to be send to the deeds officer in order for the transfer to take place.
Step 9: Enjoy your new home!
*Marius Crook is the regional sales manager for ooba

Shameful Panic Campaign against Equity Act Amendments

2011-03-07T12:36:00.000+02:00

Recent weeks have seen a spate of ‘swart gevaar’-type tactics against the Employment Equity Bill due to come before Parliament soon.

Listen to the hysterical tirades: “the job-killing demographic provision”; “existing jobs in jeopardy … stifles the creation of new ones”; “massive racial realignment of employment quotas”; “huge and unfeasible social engineering”; “would require massive population shifts” and so on ad nauseam.

All of this is hyperbolic rubbish.

The only thing that is massive about this proposed amendment is the ignorance of many critics who have been spouting their mouths off about it.

What is the real position?

The section the polemics refer to is section 42(a)(i) of the Employment Equity Act. At present, it provides that, when the Director General of Labour assesses whether an employer is complying with the Act, he “must” take into account the demographic profile of the “national and regional” economically active population.

The controversial proposed amendment is to remove the words “national and regional”.

According to the critics this has the effect of “replacing the regional criterion with a national benchmark”, an allegation that is simply incorrect.

Following on from this, they argue, Western Cape employers will not be able to employ coloureds above the group’s national average as opposed to their 54.8% representation in the Western Cape. The remainder of coloured employees will have to move to the rest of the country to be employable. Indians and even blacks will be similarly affected. Massive population shifts will result.

Why is this line of reasoning perverted and misinformed?

First, note that the proposed amendment will delete both “national” and “regional” as criteria. If the government wishes to replace regional demographics with national demographics, why does it propose deleting “national”? That they are proposing this deletion indicates quite the opposite of wanting to make national demographics the criterion. If the amendment goes through, the employer will be able to apply any area’s demographics, provided it is relevant, as the Labour Department has confirmed.

Secondly, the Director General will be given a discretion as to whether to pay attention to this criterion at all. The existing act says he “must” consider demographics. The proposed amendment says he “may” consider demographics. So he can ignore the whole issue if he deems it appropriate.

Thirdly, the definition of a “designated group” in the Act is “black people, women and people with disabilities”. One critic has declared that “the proposals invalidate the concept of ‘black’ as defined in the Act”. He says that coloured and Indian South Africans are “written out of the group”. But the definition of “black people”, if he had cared to read it, is and will remain “a generic term meaning Africans, Coloureds and Indians” in both the Act and the proposed amendments.

This fact also gives the lie to picking on Coloureds and Indians. One critic completely misreads section 42 where it refers to “different designated groups” by assuming that this means Blacks, Coloureds and Indians. However, applying the definitions given in the Act, the phrase refers to “black people (including Africans, Coloureds and Indians), women and people with disabilities”.

This means that in assessing BEE quotas, there is no distinction between “Africans Coloureds and Indians” (ACI). The balance that needs to be struck with reference to various factors including, in the Director General's discretion, the demographics of the economically active public population, is between ACI, women and disabled people on the one hand and non-blacks, men and the non-disabled on the other.

Fourthly, the critics have lambasted the proposed amendments to section 42 (as interpreted by them of course) by saying that they are absurd, unfeasible and unrealistic.

Precisely. And that is why no court will interpret the amended section in the way that the hysterical critics are claiming. It is a fundamental principle of the interpretation of statutes that if a provision would lead to an absurdity the court should adopt a construction, if possible (and it is probable), that would avoid the absurdity.

As the above makes clear, the fact that the legislator is proposing to delete “national” as well as “regional” shows clearly that it could not have been the intention of the legislator to make national demographics the obligatory criterion.

All this misguided criticism has had a pernicious effect. They are bound to create a sense of unease amongst Coloureds. Memories of District Six and other travesties will resurface. Needless and unnecessary worry and concern will have been sown in the hearts of other citizens as well.

That’s what makes all this irresponsible clamour so shameful.

SOME COMMON ANTE-NUPTIAL CONTRACT QUESTIONS ANSWERED

2010-12-20T13:22:00.000+02:00

1. As we live in England, will the contract be binding here in the event of a divorce?

In England, the terms of an antenuptial contract cannot limit or oust the divorce court’s power to make property and financial orders. However, the general approach of these courts, especially recently is that agreements freely negotiated between the parties to a marriage should be upheld, unless they were unfairly entered into or create injustice. The court is also more likely to uphold an agreement if one or both of the parties has come from a jurisdiction where prenuptial agreements are commonplace and enforceable. In the light of this, I think you would be justified to consider that it would be highly unlikely for an English divorce court to rule that your antenuptial contract would not be binding.

2. Please could you explain the concept of accrual? I think this is South African legal terminology so I am not familiar with it myself.

The basic concept of accrual is that, during the marriage, there is no change in the property rights and obligations of the parties, ie the situation remains exactly the same as it was before they married. Accrual only comes into effect on the termination of the marriage by death or divorce. On termination, the increases during the marriage in the respective estates of the parties are compared with each other. The difference between the largest increase and the smallest increase is determined. That difference is then divided between the parties either equally or in a proportion agreed to by them, with the highest-increase-party paying the appropriate amount to the lowest-increase-party.

3. All we want the contract to say is that anything that we bring to the marriage is separate, anything either of us gain during the course of the marriage is joint and anything either of us receive by way of gift or inheritance will also be separate. Is this possible?

Your contract can certainly provide for the terms you set out. You should compare what you propose with what the accrual system offers and decide which one you prefer.

Writing Tips for Lawyers

2010-10-15T13:20:00.000+02:00

WRITING TIPS FOR LAWYERS

A. PRINCIPLES

1. Use the active rather than the passive voice:

Active: the subject of the sentence performs the action, eg Mary ate the peach.
Passive: the subject is acted on: eg the peach was eaten by Mary

There are three drawbacks to using the passive voice:

1.1 it unnecessarily adds extra words;
1.2 it obscures who the actor is;
1.3 it disrupts the normal subject-verb-object order of the sentence.
In legal prose, the consequences of obscuring who the actor is can be drastic. So always use the active voice unless it is clear that the passive voice represents an improvement.

2. Don't make sentences too long – 20 to 25 words are recommended for general legal writing. If a sentence is too long, break it down into its constituent parts and make separate sentences. The effect is greater clarity and ease of understanding.

3. Keep subject, verb and object closer together:

Before: Acme shall not without the prior written consent of Excelsior which Excelsior may not unreasonably withhold transfer the shares to any person.

After: Acme shall not transfer the shares to any person without the prior written consent of Excelsior which Excelsior may not unreasonably withhold

4. Don't bury verbs:

Using buried verbs is a a description of using abstract nouns or adjectives instead of a verb. This deadens contract prose rather than allowing you to use strong or action verbs rather than weaker verbs.

Before: Immediately following issuance of the notes...

After: Immediately after Acme issues the notes...

5. Include both the number and heading of a clause when you refer to it

Usual cross reference: subject to clause 8...

Preferred cross reference: subject to clause 8 (Indemnity)...

6. Prefer the singular above the plural

In many sentences a plural noun can lead to ambiguity. For instance, it can be unclear as to whether the persons or things constituting the subject are to act individually or collectively.

Examples:

6.1 the shareholders shall notify Acme;
6.2 each shareholder shall notify Acme;
6.3 the shareholders, acting collectively, shall notify Acme.

B. HEADS OF ARGUMENT

1. Style
1.1 Try to be as brief as your argument will allow;
1.2 Avoid repetition;
1.3 avoid verbosity - expressed in or using too many words;
1.4 don’t quote long passages from your authorities;
1.5 deal with matters chronologically;
1.6 Start strong and end strong;
1.7 Tell a persuasive story;
1.8 Deal candidly with your case’s weaknesses and answer them;
1.9 Prepare a diagrammatic representation of your argument to
1.9.1 help you control the material;
1.9.2 focus on the important components of your argument.

2. Preparation Process

2.1 Identify the issues;
2.2 Select the evidence relevant to each issue
2.3 Construct the argument relevant to each issue

3. Structure of Heads of Argument

3.1 Ultimate conclusion desired from the court;
3.2 State main submission;
3.3 State main reasons for it;
3.4 State arguments for each reason

C. EXAMPLES

Inferior Terminology Suggested Alternative
shall be entitled to .... May
X shall be liable to pay ... X shall pay ...
Utilised Used
X is not allowed to .. may not ...
The tenant shall not undertake any alterations The tenant shall not alter
The Tenant agrees to have the carpets cleaned The tenant shall have the carpets cleaned
To provide the landlord with written proof that he has done so, on demand on demand to provide the landlord with written proof that he has done so,
This will be for the account of the tenant and will be payable on demand by the landlord This will be for the account of the tenant who shall pay such account whenever the landlord requires it
The tenant has no pets the tenant may not admit any domestic animals to the premises
Should the premises only be partly damaged Should the premises be partly damaged only
An independent third party will be used to decide an independent third party shall decide
The provisions of clause .... Clause ....
The tenant shall ensure that the premises shall be vacant at the time of such inspection the tenant shall ensure that all his belongings and furnishings have been removed from the premises at the time of such inspection
This acceptance shall not in any way whatsoever affect the landlord's claim for cancellation This acceptance shall not affect the landlord's cancellation claim.
Execute (ambiguous – can mean to perform or complete a contract or duty, ie to carry it out) Sign

All annexures are part of this agreement
Redundant. Any reference to the attachment will suffice to bring it within the scope of the contract.
... as amended Compliance with a statute or contract can only be measured against the current version anyway.
Automatically Can almost always be eliminated without changing the meaning.
Daily basis, pro rata basis, etc Try simply “daily”, “pro rata”.
During the term of this agreement When else ?
For the avoidance of doubt Delete it and nothing will change
Hereby, herein, hereof, hereanent, hereinbefore (above), hereinafter (below) etc Here-words deaden prose
Mutatis mutandis Together with any changes needed for the different circumstances
It’s (it is) & its (belonging to it) Use correctly

D. REFERENCES
“Technique in Litigation”, Morris, 5th edition by Judge H Daniels, Juta, 2003, Chapter 13, Argument.
“Effective Trial Advocacy” Willem H Gravett, 1st edition, Juta 2009, in particular Chapter 7 Final Argument
“Legal Drafting”, Peter van Blerk, 1st edition, Juta 1998, Chapter 15, Heads of Argument. (Good example on page 82)
“Litigation Skills for South African Lawyers”, C G Marnewick, 2nd edition, Lexis Nexis. (In 1st edition: § 25.6 page 513: Preparing Heads of Argument.)
“Preparing an Argument: a Quick and Easy Model”, C G Marnewick, The Advocate magazine, December 2004; www.sabar.co.za/PHP/sabardata.php?page=48
“A Manual of Style for Contract Drafting”, Kenneth A Adams, 2nd edition, American Bar Association section of Business Law, Chicago, Illinois. This book is a major source of the material contained in this paper.
Darrolls Attorneys blogsite: http://darrollsattorneys.blogspot.com

When a neighbour builds on your land

2010-08-27T18:27:00.000+02:00

Good walls make good neighbours - or not
Barry Washkansky
Realestateweb.co.za
27 August 2010

What recourse do you have if someone infringes building plans?

It is often said that it is easier to ask for forgiveness then permission. This seems particularly true in the property industry where homeowners often build and infringe on their neighbour's rights or property, usually both. Builders of new homes and renovators of existing ones often flout building regulations safe in the knowledge that either they won't be caught or that the possibility of being told to undo what is already done is slim at best.

There have been examples in the past when building has been stopped but this is more the exception then the rule. Sometimes residents get wind of the plans and do object in time, delaying or stopping the development /construction or at least getting the builder to amend the plans.

But what happens when someone infringes building plans and what recourse do residents have?

According to property attorney, Roland Darroll of Darrolls Attorneys (021 671 6408) there are three legal remedies available to the victim of invasive illicit building. He can apply for an interdict ordering removal of the encroachment, unless he knowingly allowed it. Secondly, he can claim damages, although any ‘knowing allowance' of the encroachment will reduce these.

Thirdly, he can offer (or the court in its discretion may order) transfer of, and claim compensation for, the land encroached upon in return for market-related compensation. This option is usually chosen where the results of removal would be more destructive or costly than the alternative.

This compensation normally consists of an amount for the land itself as well as a solatium. This is a fancy word for damages designed to ‘comfort' the injured party. This remedy began when the Roman Emperor allowed a childless mother to adopt, a practice that Roman Law at that time generally prohibited. In our case, it is for hapless landowners, understandably upset by the invasion of their land.

The above rules apply equally where the results of illegal building encroach on the vertical space above any adjacent land, i.e. in the case of roofs, beams etc.

Where the encroaching building stands on its own or can easily be split away from anything else, the victim can eject his neighbour and keep it. However, he will generally have to compensate the encroacher for value received."

When an alleged illegal construction is already underway, says Arno Watson, property lawyer from Mansons Inc (021 425 3822) the first option is a simple but not necessarily effective one. Report the infringement to the building inspector for that particular area. They will take it up and advise whether it is a "legal" structure or not i.e. whether the plans are approved or not and whether the work done is according to the plans. If it is not approved they will take it from there. If they regard it as legal, the only option would be to go to the High Court and ask for appropriate orders - this is only advisable if we are looking at damages of millions of rands and you have a good case. The costs alone will be hundreds of thousands of rands.

"Neighbours cannot just build without approval from the Municipality, which most cases would require the neighbours' consent, so they will know what is going to happen," says Watson.

The fact is that once built it can be a logistical and legal nightmare to undo work already completed. And, says Watson, it is still within the powers of the building inspectorate to order such demolition if there is no other option. Sometimes they may impose fines if they do not regard it as serious enough to order it to be taken down.

THE “NET ASSETS” DECLARATION IN AN ANTE-NUPTIAL CONTRACT

2010-08-26T09:48:00.000+02:00

THE SIGNIFICANCE OF THE “NET ASSETS” DECLARATION IN AN ANTE-NUPTIAL CONTRACT

1. Although the Matrimonial Property Act 88 of 1984 lays down the basic principles regarding the accrual system, the spouses themselves can also reach agreement as to certain aspects of its functioning. The initial value of a spouse’s estate at the time of marriage can be declared in an ante-nuptial contract. Spouses may also stipulate that the accrual system is to be excluded altogether or that the percentage of the accrual will be other than 50%.

2. Only when the marriage is dissolved will the accrual (increase) be determined. If the one spouse’s estate has shown no accrual or a smaller accrual than the other, the former spouse receives the right to payment of (normally) half the difference between the accrual of the respective estates of the spouses.

3. The starting point is the monetary value of all the assets of a spouse at the commencement of marriage less the monetary liabilities of such spouse. However the spouses are entitled to stipulate in their ante-nuptial contract that certain assets are to be excluded in calculating the initial value of the estate. The values indicated are provisional proof of the commencement value of an estate and are taken to be correct unless the contrary is proved.

4. Because of the principle in paragraph 3 and because often the commencement value needs to be proved ,often many years after the commencement of the marriage, the stipulation of an initial commencement value is to some extent a policy decision by the spouse declaring that value. In other words, spouses will declare their commencement values according to the values of assets presently owned by them that they wish to exclude from the accrual at the termination of the marriage by death or divorce.

5. When a spouse-to-be already owns minor assets such as odd bits of jewellery, furniture, clothing, other personal possessions, small savings accounts and bank balances and even a car of moderate value, not much significance is attached to them and the commencement value is often declared as “NIL”. However, when assets of some significance are owned and the owner spouse-to-be wishes to exclude them from the operation of accrual he will assess their present value and declare that as being the commencement value of his estate. Such assets could be things like immovable property, specialised and significant photographic or hi-fi equipment, a major investment in shares or a business and so on.

6. Therefore, when a party about to enter into an ante-nuptial contract asks the question “should this figure include furniture, jewellery, car etc..?” the answer is: it depends. If the value of the item is significant and the party wishes to exclude it from the operation of accrual, then its value should be included in the declared commencement value of that party's estate. Conversely, if the value is insignificant and it does not really matter at the end of the day as to whether it is included in the accrual or not, then that value may safely be ignored. Even if the value of an asset is substantial, if the party owning that asset does not mind if it forms part of the accrual, then it need not be declared.

7. From the above we can see that although the law does not specifically say so, in practice it is a question of the way in which the owner of the asset feels about the prospect of it being included in an accrual or not. Even then, this would not preclude the owner of the asset concerned who declared the commencement value of his estate as “nil”, from proving at the termination of the marriage that in fact he did own, say, a property worth, say, R 2 million at the time of the commencement of the marriage. The effect of this would be that the property would be excluded from the accrual even though it was not included in the assessment of the commencement value of that party's estate in the ante-nuptial contract itself. This is the effect of the principle that the commencement value stated in the ante-nuptial contract is merely provisional and the real commencement value stands to be proved at the time the marriage comes to an end.

You can't fire someone at will any more

2010-05-13T15:57:00.000+02:00

It's amazing how many employers run into trouble because they think they can still fire someone just by giving them a letter of dismissal. The real picture is far more complicated.

Every employee has the right not to be unfairly dismissed. He is protected against arbitrary dismissal, being dismissal without substantive grounds and/or in a procedurally unfair manner.

There are three - and only three - legitimate categories of “Substantive Grounds”,

(a) Misconduct,
(b) Incapacity (itself divided into ‘inadequate performance’, ‘ill-health and injury’ and ‘incompatibility’) and
(c) ‘operational reasons’ (retrenchment).

Every dismissal, if it is to stand up to challenge, must be procedurally fair and substantively fair. What does this mean ?

Procedural Fairness: The holding of a disciplinary hearing (pre-dismissal hearing) is the most important procedure with which the employer must comply with to achieve procedural fairness, in instances of misconduct but also in cases of incapacity.

Prior to the disciplinary hearing, the employer should conduct an informal investigation to see if there is merit in the charges against the employee. If they are serious, the employee may be suspended on full pay during the investigation and until a disciplinary committee arrives at a decision.

The hearing must in general comply with ten basic requirements to satisfy the essential element of procedural fairness:

1 the employee must be fully and timeously informed about the charges prior to the hearing;

2 he must be informed as to when and where the hearing will take place so that he has a fair opportunity to prepare his case;

3 the hearing must be held within a reasonable time after the alleged misconduct or incapacity;

4 the employee must be allowed to be present at the hearing at all times - unless, of course, he refuses to attend. Where necessary, he must have an interpreter;

5 the employee is entitled to be represented by a co-employee or trade union official and, in serious and/or complex cases, by a legal representative;

6 the employee must be afforded a fair opportunity to state his case after the employer has presented its case. This means he is entitled to:

(i) full access to all evidence (including documents) to be used against him;

(ii) cross-examine the persons testifying against him;

(iii) give evidence and put forward his defence;

(iv) call witnesses in his defence; and

(v) make concluding representations;

7 the chairperson and the disciplinary committee must be unbiased and consider all relevant circumstances and facts objectively with a just and open mind;

8 should there be a finding of guilty, then before the imposition of a penalty, the employee must be able to lead evidence in mitigation of sentence; similarly the employer may adduce aggravating circumstances (previous warnings, disciplinary record etc.);

9 the decision and the reasons for the decision must be disclosed to the employee; and

10 the employee must be reminded that he may appeal, or refer the dispute to the CCMA or a bargaining council.

Retrenchment for Operational Requirements Requires a Different Procedure

Operational Requirements are those based on economic, technological, and structural or similar needs of the employer (ie a bona fide economic rationale) and are a legitimate grounds for dismissal, provided a fair procedure is followed;

Without into the details, it is sufficient to say that an exhaustive consultation with staff must take place in order to provide the employees affected with a fair opportunity to suggest ways in which job losses might be avoided or the effects of retrenchment as a whole be minimised.

ends

Landlord Comes Up With A Surprise

2009-09-23T07:10:00.000+02:00

Hello Mr Darroll

Jackie Cameron here from Realestateweb. We're wondering whether you would like to comment on a reader question for our regular Realestateweb mailbox article?

Here is the question:

I have just moved into a garden cottage and do not have a written lease agreement with my landlord. After taking occupancy, I was advised by the landlord that planting up & maintaining the garden was my responsibility, as well as watering of the garden and the cost of the watering (I pay extra for water every month and have to use the tap in my cottage to water the plants). Does this sound like something that the landlord can insist upon, as I was under the impression that the interior of the cottage was my responsibility and the exterior was his? (Note: the garden I am “responsible” for is a small, fenced-off section around the front of the cottage).

Jackie

Dear Jackie, Here is the answer to your reader’s question:

The terms and conditions of your lease are contained in the agreement between you and your landlord which would have been entered into before you took occupation of the premises. It is undesirable to have a verbal agreement as the terms and conditions of the lease then depend on what you and the landlord respectively consider to be such terms and not on a written contract where the terms are stated and cannot be disputed (unless they are ambiguous). In terms of section 5(2) of the Rental Housing Act 50 of 1999, your landlord must, if you ask him, reduce the lease to writing. This should ideally have been done before you moved in. If you try to do this now, chances are that he will include a provision that you are responsible for the garden.

With things as they are at present, the landlord may not unilaterally impose additional terms on you after the terms and conditions of the lease have been agreed to. The landlord may not therefore insist that you water the garden and pay the cost of doing so.

The principle that you are responsible for the interior of the cottage and the landlord responsible for the exterior is a general one that is usually included in written contracts. There is an obligation on the landlord to make the leased property available in a condition reasonably fit for the purpose for which it is being let. The landlord can specifically contract out of maintaining the property or specify that the tenant is responsible for paying levies or taxes as additional charges. However if the contract is silent on these matters it is the landlord's responsibility to maintain the property and pay the taxes.

Small firms are viable - Letter of the Month - De Rebus April 2009

2009-08-24T11:20:00.000+02:00

Small firms are viable

As a proud and viable sole practitioner I am outraged at the sweeping and arrogant generalisation of the title given to the news article in 2009 (Jan/Feb) DR 18: ‘Small firms no longer a viable option’.

How could anyone in his right mind make such a gloriously ridiculous assertion?

I looked in vain for any such assertion in the article itself. What I found were a number of practitioners who listed the disadvantages of practising as a one-person firm.

Some of the disadvantages mentioned were:

•

‘Losing work to Justice Centres’: I have any number of clients who are perfectly free to use the Justice Centres but prefer to use the services of a practising attorney because they perceive the latter to be in general more effective. I would like to see some concrete evidence to demonstrate that Justice Centres ‘get most of the work that could otherwise have been handled by a smaller firm’. More likely, they get most of the work that would otherwise not have been handled by anybody.
•

‘Clients moving away because of disgruntlement’: What an outrageous statement! Is there any evidence to show that more clients move away from small firms because of disgruntlement than they do from big firms? This allegation is totally and gratuitously unjustified.
•

‘Always under pressure due to carrying all the expenses’: Of course the larger firms have the advantage of being able to share many costs, but the cost of running an effective legal research facility, more than adequate for my needs, by no means puts me under pressure. I have a better equipped library than I have seen in many a larger firm and the cost of maintaining it certainly does not put me under pressure.
•

A one-man practitioner ‘has to look after everything’: Exactly – that’s what makes it so easy. He has his finger on the pulse because it is his own pulse, without any number of nooks and crannies in the structure where inefficiencies and unacceptable practices may lurk.
•

‘Professional development is limited’ – what nonsense! It is just as much, if not more, open to sole practitioners to attend seminars, explore uncharted legal territories via publications and the Internet, etc than to any modular partner in a larger firm bustling away in his little specialist legal cubicle.
•

He is ‘always trying to catch up’ – this statement is amazing in its pomposity and presumptuousness. Who is Louis Rood of Fairbridges to apply this breathtaking generalisation to every sole practitioner in the country? According to Hortors, he is the senior partner in a firm, the Cape Town office of which alone has about 20 partners. Of course he never tries to catch up. And how he presumes to know that only sole practitioners try to catch up, I’m not quite sure. Methinks that all effective and successful practitioners are busy ‘catching up’, because if they have caught up, it means they do not have any work to do.
•

‘Delivery can be patchy’ – where does he get this from? I have an endless stream of clients who have left larger firms in utter disillusionment not only with their patchy delivery but also with the extraordinary amounts they charge for it.
•

‘You do not bill properly’ – and why not? What is stopping one, simply because he is a sole practitioner, from billing properly? Another preposterous and arbitrary statement.
•

There is ‘no time to market your firm’: How much time does it take to market one’s firm? Ten minutes or quarter of an hour to place one’s details on a relevant Internet website repeated five times or so is as much marketing as I need because if I had more I would have too much.
•

As for clients ‘moving to bigger firms’, this is a pipe dream. It would be interesting to have objective figures on the relative interflow between large and small firms but, in the absence of those, the allegation made is akin to fiction.
•

Oh dear, oh dear: We one-man bands get sick, we go to funerals, we go on holiday. So? We make the necessary arrangements and get on with it. Let the secretary run the office. Get in a locum. What is the problem? Where is the strain?
There is more, but what has been mentioned is more than enough. Come on you negative old pessimists! It seems amazing to me that a panel discussion on the nature of individual practitioners versus big law firms at the Cape Law Society’s annual general meeting, appears only to have had a single participant making a positive observation about sole practitioners – and that accompanied by gloom and doom. Little mention of the joy of being one’s own master instead of locked into a private sector version of the civil service; the satisfaction of always dealing personally with one’s clients instead of fobbing them off to some underling; the fun of being nimble, swift, sometimes a little creatively unorthodox; the enjoyment of informality and relaxed if intense productivity – ah dear big firm colleagues, you do not know what you are missing. On second thoughts, perhaps you do. Is envy the reason for all the dark and miserable comment?

Roland Darroll,

attorney, Cape Town

reckless, superficial and irresponsible advice

2009-08-23T18:45:00.000+02:00

________________________________________
Roland Darroll BA.LLB (UCT) BA (Psych) (UNISA) Tax Cert (UCT)
Si parla Italiano. Entitled to appear in the High Court
________________________________________
In association with Ince Wood & Raubenheimer,
Attorneys, Notaries & Conveyancers, Cape Town

Dear Robert

Your “rough guide” [Sunday Times “Money” 23 August 2009, page 16] was alarmingly rough:

1. “Customary marriages are deemed to be in community of property unless couples draw up an ante-nuptial contract.” Section 1 of The Recognition of Customary Marriages Act 120 of 1998 defines a “customary marriage” as a marriage concluded in accordance with customary law, ie the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples. This has nothing to do with the choice of matrimonial property regimes under the South African common law. Customary marriage has concepts such as the kraal (household); the kraalhead; the payment of ikhazi, the ubulunga beast and so on. It applies only to the tribal facet of our common society’s diamond. It is also polygamous in that a husband in a customary marriage is able to have more than one wife. It is not legally possible for a party contemplating a customary marriage to enter into an ante-nuptial contract because its matrimonial property regime is predetermined. It certainly is not possible for a customary marriage to be “deemed to be in community of property” as you allege. The matrimonial property regime that applies to customary marriages provides that the kraalhead is the sole owner of the “household property” as a whole, while the wife concerned has “full status and capacity” on the basis of equality with her husband in relation to her own “house property” only. I doubt whether you were addressing yourself to that audience. Few of them would be reading the Sunday Times.

2. “Bonds are registered in the names of both spouses, so cannot be bought or sold without consent.” Bonds as such cannot be bought or sold at all. A bond is security over property belonging to the debtor for money which he has borrowed from the bondholder, entitling the latter to have a secured claim against the proceeds of the sale of such property should the amount of the loan not be repaid. It is the underlying property that is bought and sold. A bond is then registered against that property in favour of the person or entity that has granted a loan to the owner of the property.

3. “Community of property complicates divorce”. Why ? Just because a divorcing party delays regularising the provisions of the divorce order, which you cite as an example ? This is a very narrow and unusual circumstance. In a community of property divorce the net assets of the joint estate are simply split down the middle with each party taking their own half. There are therefore normally no complications whatsoever.

4. ”... widows starving while waiting for their late husband's estate to be wound up”. This can occur just as easily in a community of property marriage or one without accrual where the survivor has no significant assets.

5. “ANC with accrual means that while assets owned before marriage remain separate, wealth acquired through joint effort after the marriage is pooled.” Wrong. In a with-accrual marriage, wealth is acquired by each of the parties separately both before and after the marriage. There is no change in the patrimonial marriage relationship between the parties to the marriage before as opposed to after the marriage. This is because the accrual only comes into effect once the marriage has come to an end. Only then, and not when “wealth is acquired through joint effort after the marriage”, is such wealth pooled and divided.

6. The accrual system “will be a problem should the first-dying spouse have the larger estate. The accrual claim will then be a liability in the estate and the accrual claim will be paid out ... before any bequests and inheritances.” Why should this be a problem ? It is in fact an advantage to the surviving spouse because, as you rightly state, payment of liabilities are generally made before those of bequests and inheritances.

7. “If you are planning to get divorced at the time of marriage...” Come again ? Can you possibly be serious? I know we are pretty cynical about marriage these days but I didn't realise that anyone could be planning to get divorced at the time of marriage.

8. “ANC without accrual is probably the way to go.” This is a crassly simplistic view. The accrual system has been carefully sculpted and introduced into our contemporary marriage law in order to gain the benefit of the separate estates regime during the marriage combined with what is in effect a community of property situation at its end. It allows maximum freedom to both parties to act in their own financial interests during the marriage. It also offers a great benefit to the spouse (generally the wife) who has sacrificed her financial earning capacity for a period in the interests of supporting her husband and bearing and caring for their children. Should the parties go their different ways, she is at least entitled to a significant share of the increase in his estate while she was busy caring for his offspring and providing a nest for himself and his family being therefore unable to increase hers.

ANC without accrual is probably the best way to go for middle-aged couples who have already built up substantial financial estates in their own right. Younger couples just starting out should consider the accrual alternative.

I hope that, from the above, you will realise that the reckless and superficial advice and analysis that you have offered to your readers is irresponsible to say the least. You owe them both an apology and a clarification.

Best wishes

Roland Darroll
Darrolls Attorneys

ATTORNEY - NOTARY - CONVEYANCER
Member No. 10772
________________________________________

Street Address: Thibault Chambers, 30 Avenue Thibault, Newlands 7700, Cape Town, South Africa - Postal Address: PO Box 23454, Claremont 7735, Cape Town
Tel (Office): + 27 21 671 6408 - Cell: 082 925 5512 - Fax: + 27 21 683 4478 / 0866126375
E-mail: roland@darroll-law.com - Website: www.darroll-law.com - Blogsite: http://darrollsattorneys.blogspot.com

WHEN CAN I HAVE A WILL SET ASIDE EVEN THOUGH THE FORMALITIES HAVE BEEN OBSERVED ?

2007-09-28T02:42:00.000+02:00

1. A will which is complete and regular on the face of it (ie where all the prescribed formalities have been complied with) is presumed to be valid until the contrary has been proved.

2. Before issuing letters of executorship, the Master conducts a preliminary investigation and checks about 10 or so technical aspects, eg whether a witness appears to be a beneficiary named in the will (in which case he would not be entitled to inherit).

3. A will may be invalid inter alia –

3.1 where the testator does not realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death; or

3.2 The testator executes the will as a result of fraud, duress or undue influence. Where a will has been signed in any of these circumstances, the testator is not acting voluntarily and one of the bases required for a valid will is missing.

4. The expression of a testator's last wishes must be the result of the exercise of the testator's own will. Undue influence has been described as an influence which has 'caused the execution of a document pretending to express a testator's mind which really does not express his mind but something else which he did not really mean'.

5. In order to constitute undue influence the behaviour of the influencer must result in the substitution of her wishes for the wishes of the testator.

6. The legal responsibility for establishing and influence rests upon the party who alleges that undue influence was brought to bear on the testator. Whether or not there has been undue influence is a question which must be determined with reference to the facts and circumstances of each particular case. The mental state of the testator and the testator's ability to resist instigation and prompting are all factors to be considered. The relationship between the parties may also be important and may give rise to a metus reverentialis (literally, intimidation arising out of over-respect/fear [on the part of the intimidated party]). The relationship might be such that the request by the one party to the other might be regarded by the latter as a command which must be obeyed. The mere existence, however, of a relationship of a particular kind does not give rise to a presumption that the wishes of another has been substituted for the testator's wishes. This substitution has to be proved.

7. If, after the execution of the will, a period of time lapses during which the testator could have altered the will should he have wished to do so, his failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes or that the testator had subsequently voluntarily and tacitly confirmed that will.

A Pledge to Our Clients

2007-09-19T01:30:00.000+02:00

.
.
# We Seek to Understand the Big Picture

We seek to give value to our clients. We ask questions and do lots of listening. We seek to understand how the matter you are asking us to handle fits into the big picture. Where relevant, we will seek to understand the dynamics and trends of the industry in which you compete or the context in which you operate. We come to the client for consultation or in our own office, as preferred.

# We Seek to Establish our Client’s Expectations and Then Exceed Them

We walk our client through how we propose to handle the matter and what he/she can expect in terms of results and timelines. We create a reasonable set of expectations and do our best to beat them. If we are unable to meet our commitments, or the results are not likely to be what we anticipated, we share that information with our client immediately.

# We Seek Always to Follow Through on our Commitments

We set reasonable deadlines and do our best to stick to them.

# We Return Telephone Calls as Promptly as Possible

Our policy is to return all calls as soon as possible but on the same day as received, at the latest.

# We Will Communicate with You in the Manner You Prefer

We will ask you the method and frequency of communication you prefer and deliver our updates and progress reports accordingly.

# We will not “Over-lawyer”

We will not research issues to death and uncover every old case and precedent to make sure we are 100% right, thereby raising your bill unnecessarily. We will do what’s right for you.

# We Strive Not to Send Surprise Invoices

We discuss estimated fees and costs up front with you. We try to give you an estimate of our fee and discuss any unforeseen developments that may arise. We talk through the options and seek your direction on how you want to handle them.

# We Appreciate Your Business

We realise that there is more to practising law than providing quality legal work. We want to provide great service, too. We strive to practise these golden rules consistently, so as to end up with loyal, long-term clients and an enjoyable and gratifying legal practice.

This blog is based on original material and material from the website of the American Bar Association © 2003-2007

HOW TO GET THE BEST OUT OF YOUR ATTORNEY

2007-09-12T09:47:00.000+02:00

Often legal clients are disillusioned with their attorneys. Sometimes this disillusionment may be justified. But just as often the lack of satisfactory service from the attorney is often due to the ignorance or inability of the client. A client needs to know how to use the lawyer's services to get the best from him.

The First Consultation

When you go in for your first interview with a lawyer or instruct him for the first time by phone, fax or e-mail, you should:

1. organise your documents – chronologically (date-wise). An index or table of contents is also useful. The index should also give a brief description of the documents (see the example below ). Provide him with all the relevant documents so that he can prepare your case well.
2. Write your story in a page or two. Bring it with you or fax or e-mail it. Cover all the essential matters. It's best typed but a hand printed document is acceptable. Your story should be organised chronologically. This saves the attorney's time. He no longer has to take down in a consultation what you could have written or typed out beforehand. You use his time efficiently and save unnecessary fees.
3. Write out any questions you may have. How long will the case take? What are my chances of success? What are the chances of a negotiated settlement ? (Most civil cases are settled.)
4. Consider bringing a friend with you to the interview. Ask the lawyer whether this would be appropriate. For some cases, it's not a good idea. However, a friend in the interview could provide moral support.

How to Communicate Effectively with your Attorney:

1. If you change your address, phone number or e-mail, let him know straight away.
2. If he asks you to provide information or documents, respond promptly.
3. If you are going to be away for a while such as during holidays, inform his office.
4. In many cases the best way to communicate with the lawyer is through his secretary. Get to know the secretary. Lawyers tend to be in and out of court or in meetings. Secretaries are always there.
5. Never take a legal decision (eg whether or not to accept a settlement offer) without consulting your attorney first.
6. Don’t phone every day, but don't hesitate to phone if you want to know what's going on, either. Consider whether your phone call is necessary. Can you save your questions for the next meeting? Each phone call will use up your lawyer's time and your money - his time and advice are his stock in trade. But busy lawyers sometimes need nagging clients !
7. Pay his bills promptly. The clients that enjoy the best service are inevitably the best payers. There is a subtle psychology at work in any lawyer's brain that tends to give the rewarding client's file priority in preference to a client who is difficult or a non-payer.
8. Should you terminate your lawyer's mandate, be the first to tell him. Don't let him learn of it through third parties.

You and Your Lawyer Are A Team

1. Don't think your attorney is all-knowing and all-capable while you have nothing to contribute.
2. While your attorney needs to learn about, and often imagine, what actually happened in leading up to the dispute or situation, you have lived through it. This experience is invaluable to your attorney. Share it with him to as great an extent as possible. Provide the best and fullest possible information you can. Rather give him too much than too little. Don't hesitate to suggest some strategy or step that he might not have thought of, so that together you can come up with best strategies.
3. Try to gain as much of your own legal information as you can. Use that information to leverage more effectively the legal advice from your attorney. Educating yourself on the law, allows you to get more out of your attorney and could enable your attorney to obtain better results for you at a lower cost.
4. The more you know about what your lawyer can do for you, the more synergistic the relationship. Blogs, government websites and law firm websites are full of valuable information about the law – even taking out library books. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be, and the more intelligent your joint decision-making.
5. Educating yourself will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal wellbeing. Paying an attorney merely to regurgitate legal information wastes time and money. Paying a skilled attorney to propose a legal course of action on a legal issue on which you have educated yourself may well be the best money you spend.

How to Reduce Your Fees
There are ways in which you can get your legal fee reduced to make them more affordable:
1. make sure that you discuss your case as well as your personal finances explicitly with your lawyer.
2. elucidate how your case can be advantageous for him and his firm;
3. always, consider hiring a lawyer associated with a smaller firm – they are almost always less expensive;
4. consider doing a significant amount of footwork yourself. This will reduce the legal fee;
5. if you have a lot of legal work, and you are in need of a legal representative for the long-term, you can negotiate, and ask for a fee reduction;
6. your lawyer will be obliged to charge a lesser fee if you prepare evidence and documents well, saving the lawyer many of these tasks;
7. e-mails are better than phone calls. Do not speak for longer than necessary. Your lawyer needs to charge you for his time if he is to earn a living. So be short and precise;
8. be sure to obtain a written fee agreement/mandate at the outset:
8.1.1 a fee agreement is essential. An attorney will serve you based on what you provide him. Be sincere when it comes to paying him. Make sure you pay his entire fee at the right time.
8.1.2 when you sign a fee agreement with an attorney, be aware of how the case will be handled, and in what way the fee will be made up. The agreement should clearly state all the terms and conditions.
8.1.3 mention clearly what services you want, and what result you anticipate. Ask questions about the fee agreement, and try to understand every aspect of it.
8.1.4 remember that whatever you estimate about your case is just a rough idea of the expenses. The actual cost may vary with what you have in mind and what turns out to need doing.
8.1.5 Discuss terms in the fee agreement that you are not happy with. Your attorney will probably be willing to explain them or change them where he feels your objections are reasonable. If he won't, go to someone else. Better at the outset than later.

Avoiding Fee Disputes

1. When you hire a lawyer, make sure that you ask for the “fee” terms and conditions to be written down in the mandate. Obtain a cost estimate. Expect to pay a deposit.
2. Familiarise yourself with the fee recommendations made by the attorney's Law Society. This will give you an idea as to what the Society considers reasonable.
3. Keep a record of the advances given to the lawyer, meetings held along with duration and what was discussed, phone calls made, court appearances etc.;
4. Whenever some discrepancies come to your attention while checking your lawyer's bills, don't hesitate - get your doubts cleared;
5. Bear in mind that even if you win a case and the court orders the other side to pay your legal costs, you'll still have to pay about a third of the costs because your attorney's fees (attorney-client costs) will be higher than the costs allowed by the court (party-party costs).
6. If a fee dispute still arises, settle it immediately with the help of the following tips:
6.1 Discuss billing in a meeting with the lawyer. Make sure that the amounts that need clarification or verification are highlighted;
6.2 consider the evaluation (taxation) services of the relevant Law Society. In matters not involving litigation (trusts, contracts etc.) the Society will evaluate ("tax") your bill after hearing both sides. Where a court case is involved, approach the Clerk of the Court or the High Court Registrar to determine the amount owing;
6.3 You can hire another lawyer to check the accuracy and validity of the bill;
6.4 in case of injustice, you have the right to issue summons against the lawyer;
6.5 you can also file a complaint against the lawyer with the Law Society.

An Attorney for Your Business or Personal Life
1. Whenever you take a step with legal implications (eg leases, partnerships, shareholders/members agreements/employment contracts ) – consult an attorney first. Don't sign first and then run to an attorney when something goes wrong.
2. There are many legal issues related to a business. Signing a new contract or an agreement is bound to have legal aspects associated with it. Be proactive to avoid legal issues before they backfire on you. Make sure that contract is properly drawn up. Don't wait until something goes wrong. It will be too late. The answer is that you should hire an attorney for your business. He will not only help you when you are stuck in any legal problem but also to avoid unwelcome litigation in the first place.

If it's Justified – Say Thank You !

Nothing is more appreciated by a lawyer or secretary than a thank you – if they deserve it. You will boost his morale and make him keener to serve your needs. If you want your case to stand out, follow the thank you rule.

Footnotes

1. In addition to original material from Darrolls Attorneys, this article is based on material from the following:
a) An article by Adv David Mossop QC of The Canadian Community Legal Assistance Society, the publication of which was made possible by funding from the British Columbia Law Foundation. Its material may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Putting this material on the web for commercial or non-commercial purposes is prohibited without the Community's written consent. Community Legal Assistance Society, Suite 800, 1281 West Georgia St, Vancouver, B.C., V6E 3J7; Tel: 604-685-3425; Fax: 604-685-7611; Toll Free: 1-888-685-6222; websites: http://www.clasbc.net/ & http://www2.povnet.org/clas
b) Brett J. Trout, P.C., 516 Walnut Street, Des Moines, IA 50309-4106; Phone 515.288.9263; Fax 515.280.7114; E-mail: Trout@BrettTrout.com; Website: http://www.bretttrout.com
c) articles by Sumit Bhatnagar and Parul Aggarwal on the website: www.ezinearticles.com.

2. SAMPLE INDEX OF DOCUMENTS
DATE DESCRIPTION Nr.
20 Jan Letter from Joe Smith to Jane Doe…………………………… 1
03 Feb Copy of Statement from the XXX Bank ……………………. 2
07 Mar Photograph of damaged property at 123 Anywhere Street, Cape Town 3

3.See for instance "Non-litigious fees" on the website of the Cape Law Society: http://www.capelawsoc.law.za/

Transport for Overtime Workers

2007-06-28T03:53:00.000+02:00

A. THE QUESTION:

Is an employer in the chemicals sector required to provide transport for those of its workers who work overtime until after 18h00.

B. RELEVANT LEGAL PROVISIONS

Basic Conditions of Employment Act 75 of 1997:

1. Section 17(2)(a) of the Act provides that, in the case of "night work" - ie work performed after 18h00 and before 06h00 the next day, transportation must be available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.

2. The full text of section 17(1) & (2) reads:

"17 Night work

(1) In this section, 'night work' means work performed after 18:00 and before 06:00 the next day.

(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-

(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and

(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift."

3. What is the meaning of "work performed after 18h00 and before 06h00 the next day"? Although it could be argued that a day worker who works beyond 18h00
falls within the definition since he performs work after 18h00, it is unlikely that the courts will interpret the definition in this way.

4. For example, some hospitals work on a day shift from 07h00 until 19h00. A night shift works from 19h00 until 07h00. If the interpretation in the previous paragraph is applied, it would mean that the day shift would be entitled to transport because it performed work after 18h00, but the nightshift would not be so entitled because it worked until 07h00, ie not until "before 06h00". This is surely exactly the opposite from what the legislature intented.

5. Finally, the section provides that transport for night workers must be 'available' between the workplace and the employees' residence at the commencement and conclusion of their shift. No clear duty is placed on the employer to provide such transport where other transport exists.

Code of Good Practice on the Arrangement of Working Time (GN 1440 in GG 19453 of 13 November 1998)

6. Clause 4 of the Code, promulgated under the Basic Conditions of Employment Act, deals with the design and evaluation of Shift Systems. These must be sensitive to the impact on employees. The information that an employer may require on the effect of shift rosters includes the means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting.

7. Codes enjoy the status of more than mere 'guidelines' to employers and employees alike, in that they must be taken into account by any person interpreting or empowering the Act. Whether or not the provisions of the Code apply to the Employer in this case will depend on the circumstances.

8. Clause 10.3.2 provides that employers who "engage employees on night work" should ensure that such employees are able to obtain safe, affordable transportation between their places of residence and their workplace. However, the mere continuation of work after 18h00 by no means indicates the engaging of employees on night work.

Bargaining Council Agreements and Minister of Labour Variations

9. It is possible to vary the basic conditions of employment by way of a collective agreement concluded in a bargaining council. As far as I have been able to determine, there is no bargaining council for the chemical sector, therefore there cannot be a relevant collective agreement.

10. There does not appear to be a ministerial determination that makes any provision relevant to the current question. In any event, an employer who is subject to a ministerial determination, or who has employees who are so subject, must prominently display a copy of the notice in the workplace. If there were a relevant determination, the employer would be perfectly aware of its rights or the lack of them.

11. The Minister also has the power to vary basic conditions of employment by making a sectoral determination establishing basic conditions of employment for employees in a sector or area. So far there have been 13 sectoral determinations but none of them relate to the chemical sector.

C. CONCLUSION

The employees who raised this issue with the employer are probably referring to section 17 of the Basic Conditions of Employment. However the employees concerned cannot be regarded as "night workers" since they finish work in the late afternoons or early evenings. The provisions of the Act relating to hours of overtime worked and remuneration in that regard may well apply, but it is highly unlikely that the section can be interpreted to provide authority for the proposition that the employer needs to provide transport merely because an employee has worked his day beyond 18h00. Even then, the section does not require the employer to lay on the transport but merely provides that the employer cannot use "night workers" unless such transport is available.

Roland Darroll
Thursday, 28 June 2007

UNILATERAL CHANGES IN EMPLOYMENT CONDITIONS

2007-06-25T11:45:00.000+02:00

WHEN A BUSINESS IS SOLD AND THE BUYING COMPANY UNILATERALLY
WANTS THE STAFF TO SIGN UNDERTAKINGS

1. THE BASIC ISSUE

1.1 A multinational company bought the business of Darrolls Attorneys' clients. The multinational then now required the staff of the purchased business to sign certain undertakings.

1.2 The questions that arise are the following:

1.2.1 is the staff obliged to sign such undertakings ? If so,

1.2.2 are the undertakings reasonable ?

2. UNILATERAL CHANGES TO TERMS OF EMPLOYMENT

2.1 The situation with regard to unilateral changes of terms of employment under the current Labour Relations Act 66 of 1995 ("LRA") is uncertain. Unilateral changes are only mentioned once in the Act, and then only in the context of the right to strike. It seems, therefore, that unlike the common law, the LRA itself places no limitation on the employer's right to vary their employees' terms and conditions of employment.

2.2 The precise nature of a unilateral change to terms and conditions of service has also received relatively little judicial attention. A court has held that employees 'do not have a vested right to preserve their working conditions completely unchanged as from the moment they first begin to work'. It is only if the changes are 'so dramatic as to amount to a requirement that the employees undertake to do an entirely different job' that they could refuse an instruction to abide by the new working rules or claim that the employer has breached their contracts by introducing the new working practice.

2.3 The law therefore clearly permits change in the workplace. It assumes that companies have to adapt to changing circumstances and that employees must be prepared to accept change within certain parameters, ie:

2.3.1 consultation. The relevant provisions of the LRA should be adhered to in this regard, ie management needs to inform staff about its intentions, provide reasons and other relevant information justifying the change, invite representations from staff and listen to and respond to staff members input;

2.3.2 agreed terms of employment, unlike non-drastic working practice changes, cannot be altered unilaterally by the employer without sound commercial reasons. This means that management has to negotiate and agree with employees before previously agreed terms can be changed.

2.4 Failing agreement, management has some powerful means available to try and enforce consent, including locking out employees who resist or retrenching those who refuse to agree. The latter option requires great caution on the part of the employer because of certain relevant legal constraints.

2.5 If the change does not involve agreed terms of employment but instead practices or rules that management had previously introduced unilaterally (eg no-smoking rules or performance standards) management does not require employees' consent to implement and enforce the change, but is required to consult with affected staff first.

2.6 Section 64(4) of the LRA suggests that the only remedy available to employees when there is a dispute over a unilateral variation of terms, is to strike. However a unilateral variation of employment terms is nevertheless a breach of contract under the common law. Employees therefore retain their right to accept the employer's 'repudiation' of their contract and sue for damages or alternatively to hold the employer to the original contract.

2.7 The case law provides no clear answer to the question as to whether an employer may dismiss employees who refuse to comply with changes to their employment contract. This is partly because the answer depends on the facts of each particular case. It is therefore difficult for the legal adviser to indicate any one course of action with confidence. That being so it might well be that employees should seek to agree to as much as they consider to be reasonable and provided that the employer consults and motivates the changes first.

2.8 It needs to be said that if employees play too hardball with an employer who has a genuine 'commercial rationale' for the variations, they run the risk (depending on the court's view of the facts) of retrenchment, alternatively being dismissed on the basis of misconduct (insubordination). Care should therefore be taken that, while remaining firm on their rights, employees do not expose themselves to the point where the employer considers that it would be justified in trying to dismiss them.

3. LABOUR LAW PROVISIONS REGARDING TRANSFERS OF BUSINESSES

3.1 Section 197(2) of the LRA provides that, if a transfer of a business takes place, the new employer is automatically substituted in the place of the old in respect of all employment contracts and the rights between the old employer and an employee at the time of the transfer continue as if they had been rights between the new employer and that employee.

3.2 Section 197(3) of the LRA goes on to say that the new employer complies with subsection (2) if it employs transferred employees on terms and conditions that are on the whole not less favourable to the employees than those on which they were employed by the old employer.

4. ARE THE UNDERTAKINGS IN THIS CASE CHANGES IN TERMS OR MERELY BUSINESS PRACTICES AND ARE THEY REASONABLE ?

On the assumption that, because of the grey area in the law as to the rights of employees in the face of an employer's unilateral change in their terms and conditions of service, the employees do decide to sign certain undertakings where they had not been required to do so before, the question then arises as to whether they should sign all or only certain of the undertakings. In order to decide this one will have to look at each undertaking in turn.

5. CONCLUSION – SUGGESTED PROCEDURE

5.1 In the first place, the employees should meet among themselves in order to establish a common policy towards the documents.

5.2 Then, employees should insist that the new Employer call a meeting to consult with them and motivate the reasons why they should sign these two documents.

5.3 Thereafter new documentation should be drawn up along the lines agreed, so that it is in a form that the employees can sign.

5.4 By following the above procedure, the employees will be able to protect themselves as far as changes to their terms of employment are concerned (which they can refuse to accept, unless there is a 'commercial rationale') and changes to working practices (which they will have to accept unless they are unreasonable).

5.5 In this way employees will obtain the best possible deal while exposing their jobs to minimum risk.

Roland Darroll
Darrolls Attorneys
Newlands, Wednesday, 20 June 2007

THE LEGAL RIGHTS OF UNMARRIED PERSONS LIVING TOGETHER IN A PERMANENT RELATIONSHIP

2007-05-30T05:59:00.000+02:00

This blog deals with the South African law relating to 'a stable, monogamous relationship where a couple who do not wish to, or are not allowed to, get married, lives together as spouses". The definition includes people of the same sex living together in a stable, exclusive relationship.

1. Property

The general rule of law is that cohabitation does not give rise to special legal consequences, no matter how long the relationship has lasted. Cohabitants may make use of the ordinary rules and remedies of the law, such as those relating to property and contract, but no family law consequences flow automatically from their relationship.

However, there are a number of legal actions that can possibly be used to create an enforceable legal right by one partner against the other:

• One is a remedy based on "unjust enrichment" where a party has been enriched at the expense of another without that other having received due value in exchange;

• Another remedy uses the concept of "universal partnership". It has been held that a universal partnership can exist between cohabitants if the requirements of such a partnership are present. These requirements are that • the aim must be to make a profit (it is sufficient in the case of cohabitation if the objective is to accumulate an appreciating joint estate); • both parties must contribute; • it must operate the benefit of both; and • the contract must be legitimate. It has also been held that a universal partnership can arise from an express or a tacit agreement. The consequences of such a partnership are that the partnership property is owned jointly;

• Finally, there may be an express or tacit cohabitation agreement. Given the presence of certain legal difficulties in this fast developing area of our law, it is highly advisable for the couple to commit their agreement to writing and sign it, so that there cannot be any doubt as to its terms.

In the absence of a universal partnership, private property acquired before cohabitation belongs to the partner separately. If there is no universal partnership, property bought by one of the parties during the relationship will belong to the purchaser.

2. Maintenance and loss of support

There is no reciprocal duty of support in our law between cohabiting parties either during their relationship or after its termination by death or otherwise. Neither party may bind the other in contract for household necessaries, unless the one has appointed the other as his or her agent. If the couple hold themselves out to be husband and wife, they will be bound by each other's contracts for household necessaries as if they were legally married because they will not be allowed to say that there was no contract of agency between them (estoppel).

There is also therefore no action for damages for loss of support against a third party who unlawfully causes the death of a cohabitant who has been supporting the surviving partner. This is so even if the deceased had a contractual obligation to support the other, because such an action only lies if the duty to support exists by operation of law. This is the case where compensation for occupational injury or disease is claimed under the Compensation for Occupational Injuries and Diseases Act 130 of 1993. A cohabitant has been included in the definition of 'dependant of an employee' provided that the employee does not also have a legal spouse.

3. The Common Home

A cohabitant who has an ownership interest in the home has a special right to occupy it. Co-owners are both entitled to share in the profits from the home and are also liable to share in the expenses and losses which the running and upkeep of the property involves. Each will be jointly and severally liable for the whole amount of the bond. If one of the cohabitees pays more than his share of the expenses, the difference can be recovered from the other.

Joint owners both have the right to occupy the home and therefore neither can evict or exclude the other from control of such property or compel the other to sell the property after termination of the relationship. Even if they have equal shares, the court will have to settle the matter if the parties cannot agree. The court may order that the home be awarded to one of the partners, subject to the payment of compensation to the other. One of the partners, however, can sell his share in the property to a third party without the other's permission if the cohabitees have not formed a partnership, expressly or impliedly.

If one of the co-owners dies, his share in the property will form part of his estate. The deceased may bequeath his share to the partner by means of a valid will. If the deceased dies intestate or bequeaths his share to someone else, the cohabiting partner will have no claim to the deceased's share in the property and will become co-owner along with the beneficiary. The surviving partner's remedy is to apply to court for an order that the home be awarded to him or her.

4. Children

A child born of a cohabitation relationship is illegitimate. The mother alone has parental power over it and even on her death, the father has no inherent right of guardianship or custody, although this can be remedied in appropriate cases by a court application.

Sexual orientation and marital status may no longer legally play a role when determining the best interests of a child with regard to custody or access of a parent to his/her children.

5. Succession

A cohabitant may leave his or her estate to the other partner even to the exclusion of any spouse to whom he may be married, although the latter will have the right to claim maintenance from the deceased. There is no right of intestate succession between cohabitants.

6. Insurance

Either cohabitant may name the other as a beneficiary under a life insurance policy, provided such nomination is clear and specific. For instance, the cohabitant will not be regarded as a member of the insured's 'family'.

7. Insolvency

If one of the partners becomes insolvent, the estate of both partners vests in the trustee in the same way as that of a married couple.

8. Other Consequences

8.1 Change of name: a cohabitant wishing to change his or her surname to that of the partner must approach the Director-General of Home Affairs for permission to do so, in the same way as any other person.

8.2 Evidence: Whereas a spouse cannot be compelled in civil or criminal proceedings to disclose communications made to him or her by the other spouse, such protection does not extend to cohabitants.

8.3 Legal actions: The matrimonial property system of community of property does not ensue from cohabitation. This means that they may sue each other for patrimonial and non-patrimonial damages.

8.4 Medical aid: s 24(2)(e) of the Medical Schemes Act 131 of 1998 requires medical aid schemes to show upon their registration that they will not arbitrarily discriminate against people on various grounds including marital status and sexual orientation.

8.5 Pension Funds: a cohabitant will enjoy the same rights as a spouse by virtue of the definition of spouse being widened to include a member of " a union of two adults, whether of the same or the opposite sex, in respect of whom the Board is satisfied that the parties cohabit as if married".

8.6 Immigration permits: the special provision made for the authorisation of the issue of an immigration permit to the spouse of a person who is permanently resident in South Africa now includes a party to a life partnership.

Roland Darroll
Cape Town
Wednesday, 30 May 2007

2007-02-09T06:02:00.000+02:00

The following article appears in the January/February 2007 edition of "De Rebus" the national journal of the Law Society of South Africa:

Payment provisions for disputed sectional title debts when wishing to sell

By Roland Darroll

A sectional title unitholder wants to sell his unit. The body corporate won’t issue a clearance certificate. It says he owes it moneys due. He says he does not, but without that certificate the transfer is a non-starter.

Most, if not all, unitholders pay under protest, get the clearance certificate, and then claim the payment back (the ‘protest payment’ route).

However, the relevant section, s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986, provides another way –

‘The registrar shall not register a transfer of a unit or … undivided share …, unless there is produced … -
(a) a conveyancer’s certificate confirming that as at date of registration-

(i) (aa) … [the] body corporate … has certified that all moneys due to the body corporate by the transferor in respect of the … unit have been paid, or that provision has been made to the satisfaction of the body corporate for … payment…;’ (my emphasis)

The unitholder can therefore provide for payment (the ‘payment provision’ route) rather than actually pay and reclaim.

Christo Botha (Statutory Interpretation, Juta, Cape Town, 4th ed, 2005, at 69), points out ‘legislation should generally be interpreted [so]that no word or sentence is … redundant or superfluous’.

Payment provision could be made by, say, providing some sort of conditional guarantee or depositing it into the trust account of an attorney, accompanied by his undertaking to pay the body corporate the amount eventually found, or agreed, to be due.

What if the provision does not satisfy the body corporate? Section 15B(3)(a) (i)(aa) ensures that unitholders settle their outstanding commitments before selling their units. It assists the financial soundness of a sectional titles scheme. However, bodies corporate can be mistaken or unreasonable, like everybody else.

The body corporate’s discretion as to whether it should be satisfied with the unitholder’s payment provision is not unfettered. When a statute requires an act to be ‘to the satisfaction’ of some entity or authority, it confers a discretion. Where the payment provision is objectively reasonable and the unitholder’s dispute is bona fide, the law obliges the body corporate to be satisfied.

‘A discretion must be exercised according to the rules of reason and justice, not according to private opinion. It must not be arbitrary, vague and fanciful but legal and regular …’
[Sharp v Wakefield 1891 AC 173, at 179; Casser & Casser v Bellville Municipality 1958 (3) SA 318(C) at 325 and Pretoria North Town Council v A. I. Electric Ice-Cream Factory (Pty.) Ltd., 1953 (3) SA 1 (AD) at 12.]

Apart from being illogical, clumsy, costly and time-consuming, protest payments are unnecessarily litigious. Public policy eschews unnecessary litigation. In Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC), the Constitutional Court, per Madala J at 150 [75], commended inter alia the following legal principles:

‘(i)[to] avoid opening … the floodgates to unnecessary litigation;

(ii) to ration scarce judicial resources by applying them to real rather than hypothetical disputes;

(iii to place limits on the exercise of judicial power by precluding rulings … not needed to resolve disputes;… ’

There is also a duty on practitioners to avoid useless litigation, as Lewis on Legal Ethics stresses (Juta, 1982, at 106). Throughout the case law it is assumed axiomatically that unnecessary litigation is to be avoided (eg, Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) at 269 [15]; South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 (T) at 592 [8] referring to Ebrahim v Excelsior Shopfitters and Furnishers (Pty) Ltd (II) 1946 TPD 226 at 236).

Where practitioners advise their clients to make protest payments, they could even be violating this duty. Litigation is inevitably needed to recover such payments.

Litigation may, of course, be necessary either way. If the parties are not able to settle their dispute, either the unitholder will need to sue the body corporate (after a protest payment), or one of the parties will have to sue the other (after a payment provision).

There could be important differences, though. The matter will more likely be settled where the funds are held by a third party rather than a party itself, possession of the disputed funds being the self-encouraging factor that it is.

There is also the question of the onus of proof. Schwikkard & van der Merwe, Principles of Evidence, 2nd ed, Cape Town, Juta, 2002, at 538 point out that,

‘the guiding principle … is that the person who makes a positive assertion is generally called upon to prove it, with the effect that the burden of proof lies generally on the person who seeks to alter the status quo’.

If the unitholder ‘protest pays’, he will be seeking to alter the status quo. The onus will be on him to show that he is entitled to the return of the disputed amount. On the other hand, if the unitholder makes a payment provision and the body corporate sues for the amount it considers due, the onus is on the body corporate.

Zeffert et al, The South African Law of Evidence, Lexis Nexis Butterworths, 2003, chap 3 (pages 45 – 92) set out what they call ‘a sustained analytic questioning of almost everything’ about the onus of proof. They call the law in this area ‘mysterious, enigmatic, elusive…’ (page 46) ‘where obfuscation has been the norm’(page 59). Therefore Schwikkard & van der Merwe’s assertion may not hold. It is beyond this article to enter these mysteries, but if Schwikkard & van der Merwe’s assertion applies, whether the unitholder ‘protests’ or ‘provides’ could be crucial in deciding on where the onus lies.

For all the above reasons, unitholders obstructed from selling their units by monetary disputes with their bodies corporate should not be cowed into protest paying. Payment provision is an equally valid and otherwise better route. Bodies corporate cannot refuse a clearance certificate just because the unitholder takes the latter course. The unit seller will be in a much better position to resolve the remaining ‘moneys due’ dispute with the body corporate – without being blocked from passing transfer to the purchaser of his unit.

Roland Darroll BA(Unisa) BA LLB (UCT) is an attorney in Cape Town.

Sectional Titles - the uppity owner

2007-01-29T05:38:00.000+02:00

One problem with sectional titles schemes is that the law is not clear and authoritative when it comes to what the body corporate should or can do with an unco-operative owner. I have a current case where the owner in question is persisting in building a structure on an area abutting on his unit where it is by no means certain that it is for his exclusive use, even though he is the only person that has physical access to the area concerned. To be able to claim the right of exclusive use in any area, the unitholder must either have received it by virtue of a notarial cession or the rules must provide that particular area is for the exclusive use of the unitholder concerned.

The strategy of our uppity unitholder is to quietly and intermittently carry on adding to the unauthorised structure until it slowly becomes a fait accompli, something already done and beyond alteration. Numerous warnings have been issued by the body corporate, but to no avail. What is the remedy of the body corporate, in other words the other owners in the complex ?

One thing one can try is to persuade the building inspector of your local authority to issue a cease and desist order in terms of their bylaws. This will cost the body corporate nothing and should have the desired effect, providing you can get your local authority to co-operate.

Another possibility is to apply for what is called a mandatory interdict that, if granted by the court, will consist of an order that the recalcitrant unitholder not only cease further construction but also dismantle what has already been constructed without due authority. A problem is that one needs to show prejudice and the lack of an alternative remedy in order to succeed in obtaining an interdict of this kind. In certain circumstances this could be difficult for the body corporate to show: the additional construction might be ugly but does it really prejudice anyone ?

The other alternative is to resort to arbitration in terms of Management Rule 71 under the Sectional Titles Act 95 of 1986. This has plusses and minuses. One plus is its relative speed when compared to the courts. One authority [Prof C G v d Merwe, author of Sectional Titles, Butterworths, looseleaf (not the English equivalent of Loslyf), updated to 28 February 2006, p 9-19] maintains that cost-effectiveness is another. I am not so sure about that. The state pays for the judge in the courts – the parties have to pay for the arbitrator in arbitration and this can also be expensive.

The learned author (we lawyers use these old-fashioned courtesies towards each other) also says another plus is that arbitration "offers better safeguards against procedural irregulations [sic – I presume he means 'irregularities'] by virtue of the provisions of the Arbitration Act 42 of 1965, that will apply to any arbitration proceedings in terms of the Sectional Titles Act".

What should also be considered is an amendment to the conduct rules imposing fines on unitholders who break those rules and the power to request an amount as security for future transgressions. This is a speedy and inexpensive remedy but the rule must provide built-in safeguards to ensure that it is not abused, eg an enquiry to establish the breach of the rules before the sanction is imposed.

In any event: a word of advice to potential sectional titles unit buyers – read the "management" and "conduct" rules first. That will tell you what kind of a situation you are moving into.