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The right to private property ownership has always been entrenched under section 25 of the Constitution of the Republic of South Africa, which right offers protections to all sellers during property transaction; in that they may not arbitrarily be deprived of their property. There have however been very few legislative authorities promulgated that provides protection of the purchaser in property transaction. In transactions that were concluding during the ordinary course of business the purchasers where to a certain extent protected by the operation of the Consumer Protection Act no 68 0f 2008 (‘CPA’ hereinafter), provided that the transaction was between a “service provider” and a “consumer” as defined in terms of the CPA. In most property transactions still, the parties involved are both “consumers”, and not afforded the necessary protection that is provided under the CPA. Instead, property transactions are oftener governed by a voetstoots clause, meaning the property is sold as is, regardless of any defects. The consequence hereof is that purchasers are often liable for any defects in the property that were not repaired prior to the property registering in their name.
From the 1st of February 2022, the Property Practitioners Act no 22 of 2019 (‘PPA’ hereinafter) will commence and bring about important changes that have bearing on property transactions. The most substantial change being the protection afforded to Purchasers relating to defects in a property. While it has been common practice that the parties disclose all defect to one another, it has now become mandatory that a comprehensive disclosure document, setting out all defects in the property, must be signed by the parties prior to concluding a sale or lease agreement. The mandatory disclosure form will have to be completed before the agent may accept a mandate to sell or lease the property. This significant change will hopefully provide more clarity when it comes to the questions regarding liability of defects in a property, protecting both the seller and purchasers. Although the signed disclosure document will not be regarded as a guarantee, the prospective purchaser can use the information to decide whether they want to purchase the property. In terms of the PPA various changes will be effected and it is essential that every person who carries on a business, profession, or trades as a property practitioner, as well as developers, sellers, and purchasers or otherwise, familiarises themselves and understands the legal responsibilities and obligations placed on them in terms of this new legislative framework. The following important changes will also be introduced by the PPA:
We at Liddle & Associates Inc. are adamant that both the seller and purchaser should have peace of mind when it comes to the buying and selling of property. We do our utmost to keep all parties in the transactions we deal with updated regarding the most recent developments in law and we endeavour to make all parties involved in the transaction aware of their rights and responsibilities when concluding an agreement of sale. We always encourage any questions or comments, so that we may grow together in a meaningful and informed way. Feel free to comment with any questions, concerns, or suggestions.
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Standard Bank stopped from repossessing home after Consumer defaults on payments under Debt Review7/9/2021 In an Application for Summary Judgment in the Western Cape High Court under case no. 19520/2018, Standard Bank argued that, despite our client making a lump sum payment R100,000.00 in July 2013, the subsequent monthly non-payments under debt review constitutes a default in terms of Section 88(3) of the National Credit Act.
Even though our client was ahead of his debt review payments, Standard Bank persisted with the argument that “the Defendant had defaulted each and every time he did not make the monthly payment which means he did not comply with his obligation to pay each month”. The learned acting Judge De Wet agreed with our Quintin Zimmermann: “How it can be argued that monthly non-payments in circumstances where a creditor (debtor) such as the Defendant had paid in excess of what was owing in terms of the restructuring order, amounts to a default of the restructuring order, is beyond comprehension”. The Western Cape High Court further showed its disapproval of Standard Bank’s conduct by ordering Standard Bank to pay our client’s legal costs and holding that “the Plaintiff’s persistence with this application in circumstances where the Defendant was clearly not in arrears when summons was issued and had in fact paid in advance, raises serious concerns whether the Plaintiff acted bona fide herein”. My first question is this... HOW OFTEN DO THESE BANKS get away with this? My second question is how much longer are we going to let them get away with it? Please choose your Property and Litigation Attorneys wisely. Let Liddle & Associates Inc help you fight against these legal injustices and protect your home during these most difficult of times. One of the worst experiences is to receive a summons on your homeloan, especially during these difficult times. Nonetheless, our client swiftly concluded a Deed of Sale for a market related purchase price of R1,270,000.00 and we presented it to Nedbank.
Instead of happily accepting the sale, Nedbank’s attorneys insisted that our client must first sign an agreement to pay an inflated shortfall of R646,523.36 by way monthly instalments of R13,050.85. Otherwise, the Bank will reject the sale and proceed to the High Court for permission to sell our client’s property on auction with a reserve price of R500,000.00. Yes, you are reading this correct, Nedbank would rather auction the property for R500,000.00 instead of accepting R1,270,000.00. As a result, we had to file lengthy pleadings in the High Court to show the court how badly our client is being treated by Nedbank. Finally, when the pressure was intensified, Nedbank admitted that they made a “bona fide error” by inflating the outstanding balance of the Nedbank bond by more than R200,000.00. Ultimately, Nedbank capitulated by agreeing to accept the Deed of Sale and writing off a massive 62% of the original shortfall. Our client was happy to agree to the pay the significantly reduced shortfall balance of R250,000.00 at a much lower instalment of R5,000.00 a month. My first question is this... HOW OFTEN DO THESE BANKS get away with this? My second question is how much longer are we going to let them get away with it? Please choose your Property and Court Attorneys wisely. Let us help you fight against these financial injustices and get the best deal possible when you need it the most. Our Constitutional Right of Access to Justice was dealt a major blow by the Supreme Court of Appeal (SCA) judgment handed down on 25 June 2021, which overturned the Gauteng Court judgment in Thobejane and the Eastern Cape judgment in Gqirana.
The Thobejane and Gqirana judgments were progressive in the expansion of Consumer Rights by holding that the Banks must proceed with legal action against Consumers in the Magistrates’ Court closest to the Consumer, where the monies owed falls within jurisdiction of such Magistrates and/or Regional Court. These two judgments ensured that Consumers were not forced to pay their attorneys and advocates the extensive legal costs that are incurred in order to defend legal actions instituted in the High Courts. Instead, Consumers must be able to defend the Bank’s actions in their nearby, local Magistrates’ Court at significantly less legal expense. In fact, aforementioned judgments gave consideration to the right of access to justice, particularly for Consumers that are already struggling financially, and held that it was an abuse of process for Banks to institute proceedings in the High Court when they could have proceeded in the Magistrates’ Court. Much to the delight of Banks, the SCA has gone in the opposite direction and held that a High Court is obliged by law to hear any matter that falls within its jurisdiction and has no power to exercise a discretion to decline to hear a matter on the grounds that another, less expensive court has concurrent jurisdiction. The tragedy is that unless this SCA decision is taken on appeal to the Constitutional Court by the self-same struggling Consumers that are unable to pay hundreds of thousands of Rand in legal costs, the door to access justice has been shut firmly in our faces. Nonetheless, our highly experienced legal team at Liddle and Associates Inc will continue to champion Consumer’s rights with both our directors regularly appearing in the Western Cape High Court to protect and safeguard our Clients’ homes and vehicles from being repossessed and sold in execution by the Banks. In the most recent developments in our law there are two central pieces of legislation that are actively changing how individuals access and protect their personal information, namely the Promotion of Access to Information Act 2 of 2000 (“PAIA” hereinafter) and the Protections of Personal Information Act 4 of 2013 (“POPIA” hereinafter). In terms of which it has become essential that every person who carries on a business, profession or trade, whether it is a sole proprietor, partnership, trust, company or otherwise familiarises themselves and understands the legal responsibilities and obligations placed on them in terms of this legislative framework.
We at Liddle and Associates Inc. would like to assist you by setting out a concise framework of the legal responsibilities and obligations imposed by PAIA and POPI on all public and private bodies who process personal information of individuals or corporate entities they work with in order to provide their services and carry out their business effectively. We regard the protection of personal information as integral in maintaining confidence between any business and their clients, employees, agent, designees and appointees. In the spirit of Ubuntu we aim to assist our fellow individuals and corporate entities to ensure that they are PAIA and POPI compliant, so that we may all evolve together and grow with dignity and compassion. The guidelines provided below must be read in conjunction with PAIA and POPI and should not be regarded as more than a summary. POPI compliance considerations:
PAIA compliance considerations:
General compliance considerations:
We always encourage any questions or comments, so that we may grow together in a meaningful and informed way. Feel free to contact our Information Officer with any concerns or suggestions. Information Officers’ Contact Details ROBYN BRONWYN ZIMMERMANN 0871383275 [email protected] The right to privacy is enshrined in the Constitution of the Republic of South Africa and everyone should know and understand that this includes a right to protection against the unlawful collection, retention, dissemination and use of their personal information. This right also encompasses your right to access your personal information and be informed of how your information in being collected, stored and processed. We at Liddle & Associates Inc. verily believe that each and every person should have peace of mind when it comes to the processing of their personal information and have set out to ensure that we treat your personal information with the utmost confidentiality, while keeping you informed.
In the most recent development there are two central pieces of legislation that are actively changing how individuals access and protect their personal information, namely the Promotion of Access to Information Act 2 of 2000 and the Protections of Personal Information Act 4 of 2013. In terms of which it has become essential that every person who carries on a business, profession or trade, whether it is a sole proprietor, partnership, trust, company or otherwise familiarises themselves and understands the legal responsibilities and obligations placed on them in terms of this legislative framework. We at Liddle and Associates Inc have updated our policies to ensure that our clients, employees, agents, designees and appointees’ personal information is processed responsibly and that they are made aware of their rights relating to their personal information. Copies of our policy documents are available from our offices during business hours. You can also access our updated policy document on our website, or by following the links below:
We always encourage any questions or comments, so that we may grow together in a meaningful and informed way. Feel free to contact our Information Officer with any questions, comments, concerns or suggestions. Information Officers’ Contact Details ROBYN BRONWYN ZIMMERMANN 0871383275 [email protected] In what has been hailed a landmark victory for the recognition of Muslim marriages, the Supreme Court of Appeal (SCA) ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, are inconsistent with the Constitution.
Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are talaq (repudiation) mutual divorce(khul'), judicial divorce and oaths In South Africa, the general practice of Muslim Divorces, occur with the husband’s verbal initiation (talaq al-sunnah) followed by the Iddah (Iddat) period upon which expiration the MJC will issue a divorce certificate. The receiver of Revenue has expressed, in writer’s first case for the application for exemption of transfer duty that the Talaq date is of the utmost important when considering the exemption of transfer duty. One of the requirements in consideration for a transfer duty exemption is that the date concluding the deed of sale between the parties must be dated after the talaq. In this event and to protect the parties’ rights, it is my suggestion to evidence the talaq with the appropriate witnessing thereof, so that there is certainty as to this date. In writer’s opinion it is also essential that a settlement agreement, is concluded, wherein the terms of the property acquisition is set out there-in prior to concluding the Deed of Sale. The terms of both agreements must specify the half share acquisition and an objective value in respect thereof. We welcome any queries or comments about your experience, when transacting in support of the recognition of muslim marriages. |
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January 2022
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