Archives: General Interests & News Flashes

Another rumour that is causing anxiety in our industry is that, as from October 2020, no property will be able to be transferred unless a certificate in terms of the Spatial Planning and Land Use Management Act (SPLUMA) has been obtained from the municipality. The main purpose of this Certificate will be to confirm that all improvements on the land are built in accordance with approved building plans and comply with the zoning scheme.

Thankfully, this is not true, at least not in the Western Cape.

The confusion appears to have arisen because we have SPLUMA, which is a law that applies to the whole country, and a by-law in Emalahleni, Mpumalanga, that applies only in Emalahleni, which has a similar name.

SPLUMA, which was passed in 2015, applies nationally, and requires provinces and municipalities to pass provincial and local laws to govern land use and land development in their provinces and municipalities within 5 years (which is where the 2020 deadline appears to come from).

It does however not specifically state that before a property can be transferred, a certificate to confirm approved building plans and zoning is required.

The similarly named SPLUMA by-law of Emalahleni, Mpumalanga however does contain such a section. In Emalahleni, Mpumalanga such a certificate is therefore required before a property can be transferred. This is apparently the practice in the Mpumalanga Deeds Office.

Given the fact that the by-law in Emalahleni, Mpumalanga so closely resembles the “main” SPLUMA by name, we think that this is where the confusion has arisen, and some commentators have interpreted the local by-law to apply to the whole of the country. We must however point out that the wording of the Emalahleni Municipal By-law is also repeated in the Polokwane by-law, so this might be a trend in the northern part of the country too.

The Western Cape Land Use Planning Act (the provincial legislation that governs how we do things in the Western Cape), and the City of Cape Town Municipal Planning By-Law (which tells us how we do things in the City of Cape Town) – both of which were passed specifically in order to comply with SPLUMA – however do not require such a certificate before transfer.

It thus appears that those of us lucky enough to be in the Western Cape can all calm down to a mild panic!

We will however continue to monitor the situation and if any further information comes to light, we will let you know.

Robert Krautkramer and Deon Welz
Miltons Matsemela Inc

Dear all

Further to our Newsflash yesterday, about the increase in the threshold for transfer duty from R900 000 to R1 000 000 we have now also discovered that SARS has in fact made changes to all the thresholds.

Herewith a table which reflects the new changes, as obtained from the SARS website.

Our website cost calculator; cost sheets and MM CONNECT APP will be updated on 1 March 2020 to reflect these changes as this will only apply to sales concluded ON OR AFTER 1 March 2020.

The City of Cape Town has recently approved amendments to the Municipal Planning By-laws. These amendments were promulgated on 6 December 2019 and are effective from 3 February 2020. The amendments will allow for the construction of a third dwelling on a property that is zoned as Single Residential, and for short-term letting. Here is a summary of the main changes:

PERMISSION FOR A THIRD DWELLING

You might recall that a few years ago, the municipality gave us the right to build a second dwelling on a property that was zoned single residential. This permission has now been expanded to allow a third dwelling. This third dwelling will however only be allowed if there are enough municipal services in the area to support it. We believe that this will be determined when building plans are submitted for approval.

The change to the zoning regulations will however not create any automatic right to subdivide the erf, but once the additional dwelling is constructed it will be possible to register a sectional title scheme, if you wish to sell off any of the separate dwellings.

SHORT-TERM LETTING

A new provision will be enacted to allow for short-term letting from a house or flat for “transient guests”. These are guests staying for a period of 30 days or less. This amendment was influenced by the increase of online platforms such as Airbnb, and to promote small businesses. This is positive news for those of you who wanted to do short term letting but could not do so due to the municipal zoning restrictions.

Please note however that both of these changes to the zoning laws will not override the rules of a body corporate or a homeowners’ association, or restrictive conditions in a title deed. Accordingly, if any of these activities are prohibited by these rules or by restrictive title deed conditions, these prohibitions will continue to apply.

The 2020 Consolidated Municipal Planning By-law document containing all amendments which will be applicable from 3 February 2020 can be read or downloaded off of the City of Cape Town’s website.

Please contact us on info@miltons.law.za if you have any enquires regarding these amendments.

CHERYLEEN NAIDOO & DEON WELZ
MILTONS MATSEMELA
January 2020

“We’re all going on a summer holiday…” (Cliff Richard)

South Africa is a great holiday destination for families, and a recent announcement by government that it has eased the requirements for children entering the country has been widely welcomed.

We discuss the documentary requirements which have applied until now, the extent to which they have been waived, and the restricted application of that waiver.

We end off with a useful Department of Home Affairs table which conveniently and clearly sets out exactly what documents are required to enter South Africa for both South African children and for foreign children in a variety of circumstances.

With the Festive Season (and our Summer Holidays!) well and truly upon us, you may be inviting family or friends to visit you from overseas with their children, or perhaps you are a foreigner planning a family trip to South Africa. Either way here’s some good news in the form of a welcome concession from government in regard to the documentation you will need to produce on entry.

In a nutshell foreign children until now have only been able to enter the country with unabridged birth certificates and consent letters. That requirement was waived – for accompanied children only (check the full details in the table below) – from 8 November 2019.

The Department of Home Affairs (DHA) says it has communicated this very welcome new development to all role players, most importantly to the immigration officials at ports of entry who are tasked with enforcing the rules, but if you do happen to have documentation handy it can’t hurt to bring it along in case of any queries. If you need visas to visit you will anyway have to produce the documents when applying.

South African children (and unaccompanied foreign children) must still provide a list of required supporting documents – see below.

Note that the above is just a summary – it is extremely important that you check the DHA table below for full details, and that you ask your lawyer for help if you think any exemptions may apply, if you have any difficulty in understanding what is required, or if you cannot get the necessary documentation together.

DOCUMENTS REQUIRED FOR CHILDREN TRAVELLING THROUGH A PORT OF ENTRY OF THE REPUBLIC

Having your company deregistered by the CIPC will have serious consequences for your company, for your business, and for you personally – so you should take the new “compliance checklist” requirement seriously.

Until you complete the checklist you won’t be able to complete your company’s annual return, and then your problems will really start because CIPC will decide that you have gone out of business and deregister the company.

Voluntary until now, completing the checklist will be mandatory for all companies and close corporations from 1 January 2020. Your first step will be to establish when your next annual return will become due …

The CIPC (Companies and Intellectual Property Commission) has announced that its new “compliance checklist” requirement, voluntary until now, becomes mandatory for all companies and close corporations from 1 January 2020.

You must complete the checklist before submitting your annual return. So firstly check when your due date for the annual return is – for companies you will have 30 business days from the day after its date of registration, whereas for close corporations you will have the two months from the first day of the registration month until the end of the following month.

Then log on to the CIPC website and find what CIPC calls its “new user-friendly service” under “e-Services for Customers”.

If you run into problems take professional advice immediately. You really don’t want to drop the ball on this! If you can’t complete the compliance checklist, you can’t submit your annual return, which will put your company at risk of deregistration because CIPC assumes that your company has stopped doing business.

Deregistration means your company ceases to exist, with drastic negative consequences for your company, for its business operations, and for you personally.

Tis the season to be jolly tra-la-la-la-laaa….

We are all looking forward to the end of year break. Time to relax after a hard year’s work. Some of you will be traveling on the roads to family and friends or various holiday destinations. Traffic in your hometown may also increase due to more visitors and tourists driving around.

Here’s what you need to know to keep safe on the roads

CELLPHONE USE

While it may be tempting to answer that call or phone your bestie (we all know we have done it), it remains illegal to do so. Think about it; is hearing about the latest relationship drama or newest bit of gossip really that urgent? Regulation 308A of the National Road Traffic Act states that –

(1)  No person shall drive a vehicle on a public road

 (a) while holding a cellular or mobile telephone or any other communication device in one or both hands or with any other part of the body;

And, in Cape Town, the City of Cape Town Traffic By Laws, 2011 further state that:

 (3)  an authorised officer may, in the public interest and safety of the public, confiscate and impound a hand held communication device.

So, unless you want to spend the festive season without your phone or pay a hefty fine to get it back, it’s best to wait until you have arrived at your destination, or make use of hands-free devices. If you are expecting a call that is truly urgent you always have the option of pulling over to the side of the road. Phone calls that are that important will always take up a lot of your attention and you are putting yourself at risk (of not seeing the traffic officer, at least!) by taking them while driving.

DRINKING AND DRIVING

For those looking forward to some cocktails or beers to celebrate – here is some of what you need to know:

• Standard glass of wine: 2.1 units
• “Draft glass” of low strength beer: 2 units
• “Draft glass” of high strength beer: 3 units
• Bottle of lager: 1.7 units
• Cider: 1.5 units
• Single spirit with mix: 1 unit

For the average adult weighing 68 kg or more it will take an hour to process one unit of alcohol. If you weigh less it takes even longer!

The limits are:

• a breath-alcohol content of 0.24mg per 1 000ml;
• a blood-alcohol limit of 0.05g per 100ml.

We’ve all been in situations where one beer or glass of wine turns into a few (or even, dare I say, too many). While you might think you are fine to drive and might even be up to operating a crane, the fact remains that the huge risk is not worth the tiny reward. What is the reward anyway? Driving yourself home and saving yourself a bit of a hassle by not leaving your car behind? When you think about it there is no way that such a small payoff is worth a huge fine or even going to jail. Not to mention the fact that you are putting your own life and those of others in danger.

So – how much can you drink? One unit of alcohol is equivalent to 0,02g blood alcohol, so after 2 units and you’ve basically reached your limit.

So, to keep safe on the road:

• Stay sober, i.e.: do not drink anything if you are going to be driving;
• Appoint a designated driver;
• Make use of taxi / “drive me home” services.

SPEEDING

Over the December holidays we are all in a rush to reach our holiday destination as soon as possible, however, for your safety and those of others, please keep to the speed limits – failure to do so can be a very costly affair! Holidays are already expensive enough as it is. R800 could buy a lot of meat for a braai or a nice meal with a sea view. Do you really want to get home and get that sinking feeling when you see that beautiful picture of your car?

On our National Roads the maximum speed limit is 120km/h. Herewith the summary of fines payable if you are caught speeding:

For fines or the contravention of other speed limits please visit:
https://www.westerncape.gov.za/general-publication/speeding-fines-light-motor-vehicles

DISCLAIMER: The content of this article is published for general information only and does not constitute legal or medical advice. Everyone reacts differently to alcohol and our bodies will break it down at different rates. We therefore give no assurances that if you drink only 2 units of alcohol, you will be below the legal limit. Please drink responsibly, and err on the side of caution. Do not drink and drive.

Our offices will be closed from Noon on 24 December and reopen on the 2nd of January 2020.

We wish all our friends, family, clients and colleagues a very Happy Holiday. Have fun, stay safe and see you in 2020.

Lisa van der Merwe
Miltons Matsemela
December 2019

“Truth will out” (Shakespeare)

Sometimes you just have to sue to enforce your rights, and should sweet victory crown your efforts you will celebrate your decision to do so. But litigation isn’t for the faint-hearted, and apart from the cost, delay and stress of fighting your way through our courts, you will want to reduce your risk factors upfront as much as you can. So if your opponent’s version of events is totally at odds with yours you will want some comfort that it is your version that is likely to win the day.

But just how can you predict which way the court will go in deciding which version to accept? We explain, with reference to a most interesting High Court fight over whether or not a (relatively inexpensive) Jaguar XF had been fraudulently sold by a dealership as a (much more expensive) Jaguar XFR.

You are wondering whether you can win in court against an opponent where your two versions of what happened are totally at odds with each other.

How will a judge decide where the truth lies? It’s an important question because even though you know you are telling the truth, the court must base its decision on the evidence put before it. In other words, whether or not Shakespeare’s “Truth will out” will apply to your court case is going to depend on what evidence you have, and on how you present it.

A recent damages claim for fraudulent misrepresentation illustrates…

Selling R320k worth of Jaguar XF as a R1m XFR

• A dealership (owned by a close corporation) sold a “Jaguar XFR” to a buyer, who financed the purchase through a bank at a price of R985,139-29. Legally the sale was from the dealership to an intermediary, which then sold the vehicle on to the bank, which then sold it to the buyer on instalment sale.
• When the buyer failed to make payments due under the instalment sale agreement, the bank seized the vehicle from him. In the process it became aware that it was in fact a Jaguar XF, not the XFR reflected in all the documentation.
• That made a big difference to the bank because a Jaguar XFR5.0 V8 S/C is, the Court was told, a very different beast from its cousin the XF5.0 V8. What was most relevant to this case was that “the Jaguar XF is a considerably cheaper kind of Jaguar vehicle than the Jaguar XFR”.
• The bank cancelled its agreement with the intermediary on the grounds of misrepresentation and the intermediary had to repay the R985k to the bank.
• The intermediary then in turn tried to recover its losses from the dealership, which however refused to pay back a cent and refused to accept return of the vehicle. To reduce its losses, the intermediary sold the XF on for R275k, after which it sued the dealership for its net loss of R710k.
• The two versions of events given by the dealership and the intermediary were irreconcilable and the factual evidence heard by the Court was an interesting and complex mix of allegedly forged signatures, unsigned documents, the mysterious addition of an “R” badge to the vehicle, and a disclosure that the dealership had bought the vehicle for R320k just days before on-selling it for R985k.

How did the Court decide?

• The Court followed “the technique generally employed by courts in resolving such factual disputes” which it summarised as (format supplied):

“To come to a conclusion on the disputed issues a court must make findings on –

1. The credibility of the various factual witnesses;
2. Their reliability; and
3. The probabilities.”

• Those three factors are of course closely inter-linked, and the Court’s assessment of them will lead it to decide whether whichever party bears the onus of proving a fact or facts has succeeded in doing so. There’s a clear blueprint there for any litigant wondering whether their version of events is likely to be accepted as fact, or rejected as fiction.
• In this case, the “We did nothing wrong” evidence given for the dealership by the close corporation’s member and ex-member was rejected by the Court, which referred to both the general probabilities and to several important changes of story both on the papers and on the witness stand with comments like “…had to change his version drastically during cross-examination as to how the transaction came about…”.
• The end result – the Court found that the member had made a misrepresentation, knowing that it was false, that the vehicle was a Jaguar XFR and not a Jaguar XF. The ex-member was found co-responsible for the fraudulent misrepresentation and all three (member, ex-member and dealership) held jointly and severally liable for damages of R710,139-29 plus interest and costs.

“Reliable electronic communications go beyond just benefiting the commercial interest of licensees to the detriment of ownership of property. The statute [Electronic Communications Act] is designed to avoid this no-winner conflict. What it seeks is to bring our country to the edge of social and economic development for rural and urban residents in a world in which technology is so obviously linked to progress.” (Extract from Constitutional Court decision quoted in the judgment below)

If you live in a “community scheme” such as a residential security estate, you probably access the Internet and make calls via either ADSL or fibre, with the necessary cabling running in underground ducting installed by the developer.

Unless your complex is brand new, that ducting is probably occupied by Telkom’s copper cabling, and in 2017 Telkom won an important case against a Home Owners Association (HOA) which wanted Vodacom to install fibre for it in the existing ducting. That outcome left HOAs and homeowners around the country facing the delay, disruption and cost of having to create new underground infrastructure.

We discuss a recent Supreme Court of Appeal decision reversing that…

If you haven’t already done so, you are no doubt thinking of upgrading soon to the “superfast broadband” provided by fibre optic cabling. In any event ADSL is about to disappear with Telkom’s plans to shut down its copper network and migrate ADSL customers to either fibre (where available) or LTE.

In a community scheme, your challenge is that your chosen fibre service provider must either use your existing underground ducting or start digging new trenches and putting in new ducting, sleeves and manholes. The expense and disruption of the latter option naturally make it very much second prize.

So Telkom no doubt celebrated its 2017 High Court victory over Vodacom and a Home Owners Association (HOA) restoring to Telkom exclusive and undisturbed possession of its underground ducting in a residential estate.

The fight, however, had only just begun. The HOA and Vodacom took this decision on appeal to the SCA (Supreme Court of Appeal), and this time they succeeded.

The complex and the copper cables

• In what is no doubt a pretty standard historical scenario for residential complexes, the developers of a private security lifestyle residential estate had some 20 years ago asked Telkom to provide telecommunication services to the estate, and had built and installed the infrastructure at the developer’s cost but in compliance with plans provided by Telkom and under Telkom’s oversight.
• Correspondence at the time indicated that “Telkom envisaged that the infrastructure would be for its exclusive use”, and since then it had always had access to the network and maintained it.
• When the HOA rejected an offer by Telkom to install fibre and instead awarded a contract to do so to Vodacom, Vodacom installed its fibre in the Telkom ducting. Long story short, Telkom successfully asked the High Court for a “spoliation order” restoring “undisturbed possession” of the infrastructure to it.
• On appeal however, the SCA ruled that in fact “Telkom’s actual use of the ducts, cables and its service to its customers remains undisturbed. It has not lost possession of anything. It remains entitled to enter into [the estate] for the purposes set out in s 22 [of the Electronic Communications Act] and its network remains fully functional as it was prior to Vodacom’s conduct. There was accordingly no spoliation.” The spoliation order was accordingly set aside.

Note that the judgment itself contains much that will be of interest to lawyers on the questions of “servitutal rights”, “quasi-possession of rights”, and the ins and outs of the Electronic Communications Act – but the important practical outcome for HOAs and complex homeowners is that it is now easier to choose your own fibre installer because, provided your installer does nothing to disturb Telkom’s use of the ducts (and its service to its clients), the free space in the existing underground infrastructure is available for use.