Prospective Purchasers – Beware!

We are often requested to advise prospective purchasers, as to the risks involved when purchasing a property where the municipal rates and taxes are in arrears for a period of more than two years.

Section 118 of the Municipal Systems Act provides for the issuing of a clearance certificate, without which no property can be transferred from one owner to another. The provisions of Section 118 (1) (b) however provide that the clearance certificate that is required by the deeds office must certify that the Municipal charges are paid which became due within the preceding two years. On the face of it, it looks like the municipality will have to issue a clearance certificate if they receive payment of the outstanding rates for the last two years which will then allow the purchaser to take transfer of the property into his name.

The question now arises, whether the municipality can hold the purchaser liable for any portion of the municipal charges which were in arrears for more than two years and were therefore not paid or contained in the clearance certificate.

To answer this question, various aspects have to be considered:

The purpose of Section 118 (1)(b) was inserted to ensure that a property would never become “sterile” due to the fact that the municipal charges, which are in arrears, are so much that the property becomes worthless.

Section 118 (3) stipulates that Municipal charges “is a charge against the property” and therefore enjoys preference over mortgage bonds registered over the property.

The various municipalities are however reluctant to write-off municipal charges and has this resulted in various court cases regarding the interpretation of Section 118. The municipalities have always relied on the wording of Section 118 (3) and argued that if the arrear Municipal charges are charges against the property and therefore it follows that the owner of the property must be liable for the arrears. This argument has, unfortunately for purchasers, also been the argument that was followed by our courts in the recent judgments regarding the interpretation of Section 118.

For this reason, we believe that purchasers should be cautious, when they purchase a property where the municipal rates and taxes are in arrears for a period in excess of two years. We are of the opinion that purchasers should insist that the full amount of arrear municipal charges be paid by the seller prior to accepting transfer of the property.

It is also often questioned by sellers, if prescription of the debt does not result in the debt being extinguished after three years. This question has also been debated in our law and the specific reason relates to whether the supply of services by a Municipality amounts to a tax, since the prescription period for taxes are 30 years, whereas the payment for services would prescribe after three years. It is therefore not surprising that the municipalities would choose to argue that all municipal charges are taxes and therefore would only prescribe after 30 years.

We are of the opinion that the portion of the outstanding municipal charges which relates to rates and taxes would only prescribe after 30 years but that the remaining charges (which are mostly for the supply of services like water, electricity, sewerage etc.) will prescribe after three years.

Protection from Harassment Act, 2011

Highly anticipated and long overdue, April 2013 at very last saw the Protection from Harassment Act of 2011 come into operation to provide a vast protection for a range of common law infringements and acts of harassment against the rights of persons and children, who are not family or in a “family relationship” to one another.

Recently also under the spotlight by the likes of Oprah Winfrey and a wide range of documentaries from England and America, bullying and also cyber bullying has become a cult phenomenon in desperate need of address in the form of legal protection and strict preventative measures.

This article is not intended to only cover the effects and preventative measures now available from the Act, but does the writer also wish to draw attention to the great tragedies and undue hardship caused by bullying, which may now be addressed and prevented.

Recent studies have shown that suicide is the third leading cause of death among young people, resulting in about 4 400 deaths per year, according to CDC. For every suicide among young people there are at least 100 suicide attempts. Over 14 percent of high school students have considered suicide and almost 7 percent have attempted it. Bully victims are between 2 to 9 times more likely to consider suicide than non-victims, according to studies by Yale University.

It is important to remember that bullying has traditionally shown its colors through the uttering of diminutive words or the actions aimed at the belittlement of the receiver, in person. As we have already entered the age of technology, bullying now has no face, but may be characterized also by an unknown or faceless infringer whose sole purpose is to “stalk”, harass or break down the very thing which we value most, our joy of life!

The greatest obstacle we were faced with was that there was little, if any, preventative measures against such harassment and it was often extremely difficult to hold those offenders accountable for their actions. The Protection from Domestic Violence Act only provided protection against people in a domestic environment and there was no equivalent to obtain protection against people not in such a domestic environment.

Now that we understand the great importance of protective measures, how does the act address the issue of bullying and/or cyber bullying?

Harassment has been greatly defined in the Act to include a vast amount of actions and will be described in greater detail below. For purposes of bullying or cyber bullying it is important to note that the definition specifically refers to engaging in verbal, electronic or any other communication aimed at the complainant whether or not conversation ensues. It further includes sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or leaving them where they will be found by, given to, or brought to the attention of the complainant.

From the aforementioned it is clear that the offender cannot escape the definition of this Act by alleging that he/she was not directly responsible. The clearest example here would be that even a “post” on the offenders own personal facebook “wall”, aimed at the complainant, would render such conduct as harassment under this act.

Should the identity of the offender not be known to the complainant, the court may issue an order directing the service provider to provide detailed information regarding such offender, which will include their name, surname, identity number and address! The service provider may further be ordered to provide any information which the court might deem necessary to consider or which may be of assistance to the court. In other words the court may order the service provider to make thorough investigation on the internet history of the offender and could his/her e-mails, search history etc be brought before court!

The court may further, after receipt of such information by the service provider or in the event that the information so received is insufficient, order the station commander of the relevant police station, to investigate the matter with the view of determining the name and address of the respondent or obtaining any further information which the court may require to identify the offender.

The court may issue a protection order in terms of this act ordering an offender to refrain from committing a wide variety of acts, which will even include enlisting the help of another person to engage in harassment and may impose any such further conditions, which the court deems necessary to protect and provide for the safety or well-being of the complainant.

When the court issues an interim protection order the court will simultaneously issue a warrant of arrest, and the execution of the warrant is suspended pending compliance with the protection order.

Should the interim protection order be served upon the respondent and he/she has contravened such an order, the complainant may hand the warrant of arrest along with an affidavit showing in which manner the order has been contravened to any member of the South African Police Service. If it appears that there are reasonable grounds to suspect that the complainant is suffering harm of may suffer imminent harm, the member MUST IMMEDIATELY ARREST THE RESPONDENT.

It should be clear that this act provides extreme preventative measure against a range of forms of harassment, but is not intended to provide a civil remedy to claim for compensation for infringement of dignitas or fama (dignity and respect and good name and reputation). There are other remedies, which should be followed in those cases.

SHORT SUMMARY OF THE ACT:

What is harassment?

– Direct or indirect conduct that either causes harm or inspires belief that harm may be caused;
– Such conduct includes following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant;
– Includes contact through verbal communication, electronic information and other forms of communication;
– Includes sexual harassment and unwelcome behavior, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome – This will include suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or person who has a close relationship with the complainant. Also includes promises of reward for sexual request or punishment for refusing a sexual request;

What type of harm does the act intent to prevent?

This act is aimed at a great number of harassing situations and includes mental, psychological, physical AND economic harm.

Economic harm? Yes, strikers should beware not to exceed their rights when taking part in a protected strike. Should you exceed what the law allows you to do when taking part in a protected strike, you may find yourself on the other side of the law and may your actions be defined as harassment AND the cause of economic harm!

Who is protected and who may bring such an application?

Anyone who believes that they are being harassed by another person can apply for a protection order under the act.

A child under the age of 18, or a person on behalf of a child, may apply for a protection order. This means that the child MAY APPLY without the assistance of his/her parents.

If a person is not able to apply for a protection order by himself, another person who has a real interest in preventing or stopping the harassment can apply on his/her behalf. This is important in the context of people with certain disabilities.

What protection is provided?

The Act makes provision for a special process where an initial court order is made without the immediate knowledge of the person who is harassing the complainant, which order is made on the strength of the affidavit of the complainant. The court should be satisfied that there is prima facie evidence that the complainant is being or may be harassed and that harm is or may be suffered.

The court shall then immediately issue and interim protection order and shall simultaneously issue a warrant, which warrant’s execution shall be suspended pending compliance with the protection order.

The protection order shall be served on the Respondent in the prescribed manner and this order shall call upon the Respondent to appear before the court on a specified date in order for the court to consider whether the order shall be made final.

Should the Respondent harass the Complainant after the interim protection order was served upon him/her the Complainant may approach the relevant SAPS and provide an affidavit showing the alleged harassment along with the warrant. If it appears that there are reasonable grounds to suspect that the complainant is suffering harm or may suffer imminent harm, the member MUST IMMEDIATELY ARREST THE RESPONDENT.

Failure to comply with the final protection order is a criminal offence and the person may be liable on conviction to a fine or IMPRISONMENT not exceeding FIVE YEARS.

Where do I apply for such an order?

A complainant may apply to any Magistrate’s court where they live or work or any Magistrate’s Court where the person who is causing the harassment lives or works. You may even apply to the Magistrate’s Court where the harassment took place if it is necessary.

How do I apply?

The process for applying has been concluded to show great similarities with the manner in which you applied for a protection order under the Domestic Violence Act.

There is an application form to be completed, held by the clerk of the court, wherein you will set out the reasons why a protection order is required and listing the full details of all incidents of harassment, which you may have experienced.

The complainant shall also include specified acts committed by the Respondent and the court will then consider to list those specified acts as acts which the Respondent is ordered from conducting. The court may also impose additional conditions necessary to protect the complainant and to ensure that he/she shall not be harassed.

All these measures are taken to protect the complainant and to provide for the safety and well being of such a person.

In addition and finally, the court may order that the physical home address or work address of the complainant be omitted from the protection order in order to ensure that the offender/perpetrator shall not obtain such information, if unknown to him/her.

FINALLY

This act is intended to provide protection under circumstances of harassment and is intended to provide a “simple” yet efficient remedy.

As with any Act this Act too may be abused if not applied correctly and there may therefore also be a downside to this wonderful act.

If you intend to make such an application or even in the event that you have received an order in terms of this act, it is advisable to obtain good legal advice from your Attorney first before making such an application or opposing any order made in terms of this Act.

What are my rights when “pulled over” by a police or traffic officer

A uniformed police officer has the right to stop any vehicle at any time. If you are stopped by the police, you are obliged to give your name and address, if required, and any other particulars concerning your identity. You are entitled, however, to ask such a person, whether in uniform or not, for proof of identify. You may demand to see their appointment certificate (identity card).

The Criminal Procedure Act is very clear in stating that an officer who cannot or will not provide an appointment certificate on demand is in violation of the Act and that any actions that he or she takes will be unlawful if such a certificate is not provided. In terms of the National Road Traffic Act, a traffic officer does have the authority to demand your driver’s license, which by law must be kept on the driver’s person or in the vehicle. In some cases, the license must be shown to a police officer at any police station within seven days. A police officer may order that the use of a vehicle considered un-roadworthy be discontinued immediately. They may, alternatively, specify that the vehicle may only be used for a limited period or to reach a specific destination. They are empowered to remove the clearance certificate (license disc) from the windscreen.

When stopped in a roadblock, traffic authorities regularly try to create the impression that you have no option but to settle your fines there and then under threat of arrest. The fact is that they cannot under any circumstances arrest or detain you (same thing) for an outstanding traffic fine for which there is no warrant of arrest.

They may serve you with a summons to appear in court, as long as the court date on that summons is at least 14 days in the future (Sundays and public holidays excluded) but they may not force you to pay there and then.

If a law enforcement official wants to arrest you, you have the responsibility not to resist arrest in any way.

A male officer may not physically search a female and vice versa.

The Constitution forbids arbitrary search and seizure of your person, your property or possessions. If you are stopped by law enforcement officials they must have a valid belief that you may have been involved in the commission of a crime and that a search warrant would be issued by a Magistrate or Judge if they wish to search you or your vehicle and/or seize your possessions.

This applies to “random pull-overs” where you are singled out by law enforcement authorities.

It does not apply to properly constituted roadblocks where search and seizure is in fact authorized prior to the roadblock being set up.

If you are arrested, you must be informed of your rights immediately when you are arrested. If you are arrested, you must be taken directly to a police station. Driving around with you in the back of a vehicle for extended periods of time is not acceptable.

If you are detained, you have the right to be brought before a court within 48 hours of your detention.

In most cases, you will have the right to apply for and be granted bail at the police station. It is only in the case of serious crimes that your application for bail can only be heard by a court.

You will be informed on what date and in which court you are required to appear.

You will have to pay an amount as is set down to guarantee your appearance in court.

Can anyone be a Google lawyer?

Every so often I meet a client who clearly has made the effort to study his case, has considered the merits of his case and has gone over and beyond to do some further research online.

In this day and age Attorneys too from time to time make use of various websites, which provide great feedback by other Attorneys or merely use google as a search engine to obtain the latest report on a specific case or specific subject.

The question I then ask myself is, is it possible for anyone to be google lawyer?.

At first glance this subject seems quite feasible. If a person is of sound mind and integrity, is willing to put in long hours and even nights if necessary, has the ability to study multiple cases and acts simultaneously, memorise a great number of them and then summarise all of the aforementioned into a coherent argument, after of course applying same to the case study at hand, surely he could be able to put together a “case”.

Then there is the issue regarding actually remembering all of the aforementioned and being able to argue this before an open court and then “at the drop of a dime” be able to adapt and “duck and weave” the tremendous onslaught by your opponent and attack with an even greater onslaught in order to persuade the Magistrate/Judge that your version is beyond reasonable doubt the most plausible version.

As an afterthought it should however be mentioned that being an Attorney does not necessarily imply that you should be a litigant. There are a great number of fields, which do not require any litigation, but which do require a further set of specialised skills.

I guess the same could then be said in respect of any profession, whether it be a quantity surveyor, teacher, doctor, or even a heart surgeon (whom I suspect might be in desperate need of a heart transplant at the mere mention of this possibility!).
Although this issue at least seems debatable, the answer is however found in the countless disadvantages and negative effects this could have on the profession and society as a whole.

At times a client would provide me with a case study or an argument, possibly found on the internet, where I am literally taken aback by the content and implications of the argument provided.
The main issue is the fact that google does not separate between different justice systems and merely provides you with an automated response, not necessarily applicable to our justice system.

Although many justice systems enjoy the same heritage from the roman law, as we do in South Africa, at some point in history every justice system acquired its own clear distinguishable characteristics and have then also evolved to suit the need of a particular area. Several other influences are at play with the evolution of any justice system, to the extent that South Africa and America hardly have any legislation in common. Even our court process and systems are worlds apart, but yet certain issues are referred to by the same name assigned to it as a result of our shared heritage, hundreds of years ago.

Making use of the internet to obtain information regarding a particular aspect is consequently for your enjoyment and could be quite informative, but without the proper legal knowledge or background I would emphasized that taking advice from other “bloggers” is not advisable and is studying legislation very risky in the particular if you are not cautious.

The fact of the matter is that a heart surgeon possesses more than a specific set of skills and acquired his knowledge through tremendous hours of study and practice. Same goes for Attorneys and therefore you cannot therefore compare “internet knowledge” with the physical experience. You have to compare “apples with apples”.

Legal professions are further governed by legislation and governing bodies or boards, whose sole purpose is to ensure that the professional’s conduct and actions meet a specific standard and then continuously ensure that the professional’s actions are scrutinized so as to ensure that he/she may be held accountable for any unethical or blameworthy conduct. Apart from this you obviously have to be admitted by the applicable board after obtaining your decree, completing practical training and then passing board exams. You will therefore not be allowed to practice without such admittance.

This ensures that a certain standard can be maintained and in general serves to protect the public. Professionals are not held accountable to the norm of the “reasonable person”, but are held accountable to the norm of the “average” professional in their specific field.
Attorneys constantly endeavor to ensure that they are well informed and continuously study the most recent judgments or legislation on numerous subjects, and hardly ever make any decision on a subject before they are absolutely certain of legal position.
Taking into account the hundreds of different legislation found in South Africa and the hundreds of thousands of different cases literally reported daily across South Africa, it is understandable that even Attorneys elect to specialize in a particular field of expertise should therefore not even attempt to give advice on a subject they are not fully acquainted with.

At the end of the day internet “bloggers” and “google” attorneys cannot “stand” by their submissions or advice, nor are they held accountable to any advice given.

There is therefore hardly ever much thought put into their answers and is little if any of the answers ever substantiated by the relevant authorities, but nevertheless they allow the public to raise questions on a variety of subjects and then recklessly give advice to the unwary.

To be quite honest, the internet bloggers do not need to put much thought into their answers or advice, because nobody really cares when their answers are incorrect. If they are wrong, the following blogger will merely add a “tail” to the advice given and attempt to correct the answer.

This will be repeated until you have a whole page full of “answers” by random unknown bloggers, the one more incoherent than the next. This is what I like to call “the blind leading the blind”.

In conclusion it is therefore advisable to do the relevant research and make sure that you understand the type of matter which you are faced with, but to rather obtain proper legal advice before making an uninformed decision.

As practicing litigant I gladly take a swing at those internet bloggers and “hello peter’s” of the cyber world (underworld) and therefore invite them to make attendance at our courts, step into my arena and compare their apples with my apples.