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
Friday, 15 October 2010
Friday, 27 August 2010
When a neighbour builds on your land
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.
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.
Thursday, 26 August 2010
THE “NET ASSETS” DECLARATION IN AN ANTE-NUPTIAL CONTRACT
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.
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.
Thursday, 13 May 2010
You can't fire someone at will any more
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
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
Wednesday, 23 September 2009
Landlord Comes Up With A Surprise
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.
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.
Monday, 24 August 2009
Small firms are viable - Letter of the Month - De Rebus April 2009
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
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
Sunday, 23 August 2009
reckless, superficial and irresponsible advice
________________________________________
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
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
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