HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES?

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent (usually the father) would be entitled to visitation rights.

The custodian parent would be vested with making all of the day-to-day decisions of the minor child including which school the child would attend, what religion the child would practice, where the child would reside and so on.

The parents now have joint parental responsibilities and rights, and all major decisions relating to the minor child need to be taken by the parties jointly, which is a far healthier situation for the child.

  • If the unmarried father only wants to apply for care and/or contact, he can do so in the Children’s Court.
  • If the unmarried father wants to apply for guardianship, an application must be made in the High Court.
  • If the unmarried father wants to apply for care, contact and guardianship, he must bring the application in the High Court.

An unmarried biological father may ask a court of law to grant him full parental responsibilities if he:

  • at the time of the child’s birth, is living with the mother in a permanent life partnership, or
  • consents to be identified as the child’s father, or
  • successfully applies to be identified as the child’s father, or
  • pays damages in terms of Customary Law, or
  • contributes or has tried to contribute to the child’s maintenance and upbringing for a reasonable period.

What factors will the court take into account when considering an application for parental rights and responsibilities?

  • The best interests of the child.
  • The relationship between the unmarried father and the child.
  • The relationship between any other person and the child, such as the mother.
  • The degree of commitment the unmarried father has shown towards the child.
  • Whether the unmarried father has contributed or attempted to contribute to the maintenance of the child.
  • Any other factor the court considers to be relevant, such as:
    • whether the unmarried father has a history of violence towards children;
    • the effect of separating the child from his/her mother; or
    • the child’s attitude towards the relief sought in the application.

Reference

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

AVOID DISCRIMINATION WHEN POSTING JOB POSITIONS

Recruiters should be careful when posting job positions so as not to land themselves in hot water with the Advertising Standards Authority of South Africa (ASA). In a recent incident, a respondent using the industry news website Bizcommunity, had to issue an apology for posting a job position with “Native English Speaker” as a requirement.

Excluding applicants on the basis of language, race or ethnicity

Mr Zibi lodged a consumer complaint against an advertisement which appeared on the website’s job listings. Among the advertised requirements was, “Native English speaking”.

Zibi claimed that the advertisement is discriminatory on the basis of language, which is a violation of the South African constitution and labour law.

The respondent in the matter claimed that the advertisement had already reached its expiry date and that the phrase is common. However, after having had internal talks around the issue, they decided to amend the advertisement to avoid any future types of these complaints. The amendment involved changing the position requirement to “Exceptional English writing and communication skills”, which they believed should address the issue.

Tread lightly

Although it was a small incident, it should not be treated casually, since some people may not be satisfied with an apology. The damage it could potential do to a company’s image should also not be underestimated. A simple error may lead to an extensive amount of time being taken to rectify the problem, which means a loss of money.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN THE FUTURE DEVELOPMENT OF A PROPERTY BE STOPPED?

The provincial heritage resources authority (PHRA) granted a permit in terms of Section 34 of the National Heritage Resources Act 25 of 1999 for the demolition of a structure that was older than 60 years and situated on a property with no formal heritage status. By doing so, conditions were imposed controlling future development on the property and it was held that such conditions were lawfully imposed.

Gees v the Provincial Minister of Cultural Affairs and Sport

The Supreme Court of Appeal (SCA) recently dismissed an appeal against a judgment of the Western Cape High Court. In so doing the SCA held that the large concentration of art deco buildings spanning Davenport Road, Vredehoek, Cape Town, forms part of the national estate and is worthy of protection as a heritage resource.

Therefore, the SCA held that Heritage Western Cape, in granting a permit for the demolition of the appellant’s 60-year-old block of flats, was justified in imposing conditions controlling future development on the property.

It is true that the conditions imposed in the demolition permit amount to a curtailment of the appellant’s entitlement to deal with his property as he sees fit, and may therefore to a certain extent be regarded as a deprivation of property. However, it is widely recognised that in our present constitutional democracy an increased emphasis has been placed upon the characteristic of ownership which requires that entitlements must be exercised in accordance with the social function of law in the interest of the community.

Conclusion

AJ van der Walt and GJ Pienaar in “Introduction to the Law of Property” 7ed (2016), put it as follows:

‘. . . the inherent responsibility of the owner towards the community in the exercise of his entitlements is emphasised. The balance between the protection of ownership and the exercise of entitlements of the owner regarding third parties, on the one hand, and the obligations of the owner to the community, on the other hand, must be maintained throughout. This might, in certain circumstances, even mean that an owner’s entitlements could be limited or infringed upon in the interest of the community. In such cases the infringement must always be reasonable and equitable [not arbitrary].’

Reference:

  • Gees v The Provincial Minister of Cultural Affairs and Sport (974/2015) [2015] ZASCA 136 (29 September 2016)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

MY EX’S NEW PARTNER IS ABUSIVE TO MY CHILDREN

It is important for a child to have access to both parents, and in a situation where both parents were actively involved in the child’s life, the access to both parents should be as equal as possible. As much as you don’t want to pry on your ex’s time with your children, what should you do if your ex’s new partner is abusive towards your child? Section 28(1)(d) of the Constitution of the Republic of South Africa states that every child has the right to be protected from maltreatment, neglect, abuse or degradation.

What defines abuse?

  • Physical Abuse: This type of abuse is one where the abuser conducts an act which leads to physical bodily harm such as bruises, cuts, burns and fractures.
  • Emotional Abuse: Emotional abuse constitutes domestic violence, and is identified as a pattern of degrading or humiliating conduct towards the child.
  • Verbal Abuse: This kind of abuse may be harder to differentiate from emotional abuse; verbal abuse is the act towards the child, and emotional abuse is the result.

What to do?

A parent cannot stop the other parent from having access to a child. Visitation must be in accordance with the parenting plan. The Children’s Act stipulates that the rights of the children are the most important, and their rights should be protected, promoted and respected. The child’s emotional and intellectual needs are considered when making decisions about what is best for the child.

  • Firstly, try to speak to the person whom you have joint custody with, to try to come up with a solution before approaching legal representatives.
  • If this fails, report the suspected abuse. This report will serve in your child’s favour when in court.
  • Apply for the amendment of the parenting plan. This can include limited visitation which should be administered through the Office of the Family Advocate.
  • Only three people may request amendment or termination of the agreement:
  1. Parents of the child,
  2. The child, or
  3. A person who is acting in the interest of the child.
  • Rights can be minimised or terminated by the court

References:

  • The Children’s Act Explained. (2017). [ebook] p.3. Available at: http://www.justice.gov.za/vg/children/dsd-Children_Act_ExplainedBooklet1_June2009.pdf [Accessed 12 Jun. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I OBTAIN FINANCING IF I DON’T OWN IMMOVABLE PROPERTY AS SECURITY?

The article gives a brief overview of what a notarial bond is, the requirements that need to be complied with to register a notarial bond and give tips regarding clauses that will prove to be useful in a notarial bond. It also deals with the situation where a debtor disposes of an asset listed in a notarial bond, contrary to the provisions thereof.

A very useful way of obtaining financing to start a new business, is to register a notarial bond over the movable property belonging to the business. For instance, notarial bonds are regularly utilised in transport companies – a notarial bond is registered over the vehicles forming the core of the business, but the vehicles do not need to be in the physical possession of the creditor, thus the business can fully operate.

What is a notarial bond?

A notarial bond is a general or special bond where the movable assets of a debtor are used as security for a debt. In terms of the notarial bond, the debtor undertakes to pay his debt towards the creditor, failing which the creditor will be entitled to sell these movable assets and to utilise the proceeds thereof to satisfy his claim against the debtor. There are 2 types of notarial bonds:

  • General notarial bond: all the movable assets on the debtor’s property serves as security for the debtor’s debt.
  • Special notarial bond: specific movable assets identified in the bond will serve as security for the debt.

How does a notarial bond differ from a pledge?

A pledge requires the delivery of the movable asset pledged. A notarial bond does not require the delivery of the movable assets identified in the bond, but in terms of section 1(1) of the Security by Means of Movable Property Act 57 of 1993, the movable property listed in the notarial bond will be deemed to have been pledged to the creditor as effectually as if it had been delivered to the creditor. The fact that the creditor is deemed to be in possession of the property thus places him on equal footing with that of a pledgee. The creditor, upon registration of the notarial bond in the deeds registry, acquires a real right of security in the movable property specified in the bond.

Requirements:

  1. Existence of a principal debt;
  2. Assets which serve as security must be movable, including corporeal and incorporeal assets.

Corporeal assets include furniture, vehicles, the goods of a business, animals and the future offspring of animals and stock in trade.

Incorporeal assets include an unregistered long-term lease of immovable property, a short-term lease of immovable property, a liquor license, a water use license, site permit, shares in a company, goodwill of a business, book debts etc.

What if more than one creditor uses the same asset as security for their debt?

A bond which was registered first enjoys priority over a bond registered thereafter.

Important clause to insert in the bond:

To prevent the debtor from disposing of assets which serve as security in terms of the notarial bond, a clause should be inserted disallowing the debtor to sell, alienate, dispose of, transfer or permit the removal of the asset from the debtor’s place of residence or place where he carries on business, without the prior written consent of the creditor.

What happens if a debtor disposes of the asset identified in the notarial bond, contrary to the stipulations in the notarial bond?

The creditor will be able to apply for provisional sentence summons against the debtor, provided that the notarial deed meets the requirement of being a liquid document. A liquid document is a document which indicates, without having to consult extrinsic evidence, an acknowledgement of debt, of which the amount is easily determinable. A notarial bond will in general qualify as being a liquid document.

A creditor will also be able to claim back an asset which has been sold, contrary to the provisions of the notarial bond, to a bona fide third party, from such third party. The reason for that is the fact that a notarial bond, which has been registered in the Deeds Registry, creates a real right, which is a right that attaches to property, rather than a person.

It is not easy to obtain credit in the economic environment in which our country currently finds itself. However, there are ways to get your business off the ground and registering a notarial bond over the property of your business is a recognised method of securing your business’ debt. If notarial bonds can be utilised more frequently, it can help a lot of new businesses get the financing they need to buy equipment, vehicles and machinery necessary for the operation of the business.

Reference List:

  • Explanatory Notes Part 1: Course in Notarial Practice, compiled by Gawie Le Roux, Erinda Frantzen and Ilse Pretorius
  • The South African Notary, sixth edition, M J Lowe, M O Dale, A De Kock, S L Froneman, A J G Lang

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE RIGHTS OF A DOMESTIC PARTNERSHIP

Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora: A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes.  Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract.  This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions.

Reference List:

  • Butters v Mncora 2012 (4) SA 1 (SCA).
  • Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
  • Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
  • Intestate Succession Act 81 of 1987.
  • Maintenance of Surviving Spouse Act 27 of 1990.
  • Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.
  • The Domestic Partnership bill in GG 30663 of 14-01-2008.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN THE POLICE SEARCH A PERSON WITHOUT A WARRANT OF ARREST?

This article focuses on primarily whether the police may search a person without a warrant of arrest. On the face of it, it would appear that the search and seizure of a person and premises are in contravention with the Bill of Rights, more specifically section 14 of the Constitution of the Republic of South Africa.

With the enactment of the Constitution, there have been a number of constraints on search and seizure powers by police officials. Section 14(a) of the Constitution specifically protects the right not to have a person or their home searched. A person’s home, it is widely accepted, constitutes the highest expectation of privacy. According to section 36 of the Constitution, rights in the Bill of Rights may be limited by a law of general application, if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The Criminal Procedure Act allows the police to search any person or any container or premise of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonably believed to be evidence that could assist the state in proving that an offence was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

What this essentially means is that a police officer can search you personally or can search your car or house even when no search warrant was obtained and even when you did not give permission for such a search. However, such a type of search without a warrant can only be executed where there are reasonable grounds to believe that a search warrant will be issued to the relevant police official should he apply for it and that the delay in obtaining such warrant would defeat the object of the search.

According to the relevant case law, a police officer must have a reasonable suspicion that a person committed an offence or that a person is in possession of an article used or to be used in the commission of an offence. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because of your appearance, he or she will not be able to merely argue that there is a reasonable suspicion that you committed an offence or are in possession of an article used in the commission of an offence and, hence, will not be entitled to search you.

In terms of the South African Police Act 68 of 1995 the National or Provincial Commissioner may where it is reasonable in the circumstances in order to exercise a power or to perform a function of the service, authorise in writing a member under his command to set up roadblocks on any public road. Any member of the South African Police Service may, without a warrant, search any vehicle at such a roadblock. However, such a search without a warrant in a roadblock may only be conducted upon the written authorisation by the National or Provincial Commissioner of the South African Police Service.

It is of paramount importance that a police official exercise his or her discretion in conducting a search without a warrant carefully and does not infringe a person’s right to privacy as entrenched in section 14 of the Constitution. It is also important to note that a search and seizure by a police official must be reasonable and justifiable in terms of the Constitution.

Reference List:

  • The Criminal Procedure Act 57 of 1977
  • The South African Police Service Act 68 of 1995
  • The Constitution of the Republic of South Africa,1996
  • Geldenhuys T, The Criminal Procedure Handbook, Juta, August 2010

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHEN CAN THE MUNICIPALITY DISCONNECT MY WATER AND ELECTRICITY?

The municipality is the place where most, if not all, services are monitored for their availability to a property, and it is the very place that may cut off the supply of said services. Their authority does, however, come with the responsibility of remaining within the legal boundaries of managing the supply of services to properties. This article will explore the legalities of disconnecting water or electricity.

Accounts in arrears

If one of your municipal services is in arrears, the municipality is well within their rights to disconnect whatever service when there are undisputed arrears owed to any other service in connection with the related property. Before any disconnection takes place, there is a procedure for the municipality to follow.

Notices

The municipality is legally obligated to give a notice to the person responsible for the account. A minimum of 14 days written notice of termination is required for water and electricity accounts in arrears and if the notice period is shorter than 14 days, or not supplied, the disconnection is illegal. The 14-day notice gives the responsible party an opportunity to present any disputes or queries they may have regarding the account or allow them to repay the arrears.

The query period

Once a query relating to the account has been put in, the municipality may not disconnect services provided that the amount being queried is equal to the amount in arrears. In the case where the amount is less that the amount in arrears, the service may be disconnected for the undisputed amount owing.

Payment of arrears

When a query has been logged, it can only be valid for so long provided that the monthly bill or any other related payments are being made to the respective account. If the responsible person does not make any form of payment, the service may be disconnected even if a logged query exists with the municipality.

State where the payment should go

If there is an account dispute and the responsible person makes a payment to the municipality, the municipality may choose to allocate that money to any account they wish to do so. This means the account in need of the payment may not have the payment made into it. To curb this, the responsible person must notify the municipality, in writing, of the payments being made as well as which account they should be allocated to. This must be done before payment is made.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

PROPERLY EXECUTING A WILL IS EXTREMELY IMPORTANT

I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then signed the will on all the pages. I am now worried about the validity of my will as the email from my attorney states that I have to sign the will in the presence of two witnesses. Is my will valid?

The formalities for the valid execution of a will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed… shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, in order for a will to be valid, it has to be signed in the presence of two independent witnesses, both witnesses being present when the will is signed by the testator. The two witnesses signed your will in the presence of each other, but not in your presence.

A similar set of facts presented itself in a court case recently heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior for 8 years.

The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 will”) and another on 7 January 2014 (“the 2014 will”). The 2014 will was signed shortly before his death leaving the bulk of his estate to his much younger lover. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified.

Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a will. She and her husband were asked if they would accompany the deceased in order to sign the will as witnesses. They were assured that the process would not take long so they agreed to assist.

She and her husband signed the will and immediately left. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They left before witnessing the deceased signing the will.  Hence, the 2014 will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses.

The evidence assessed collectively established that the deceased signed the 2011 will and also that he signed the 2014 will. However, the 2014 will was signed by the deceased after the two witnesses to the will had already left and therefore was signed in their absence.

The court referred to Section 2 of the Wills Act in terms whereof no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the will is not valid for want of compliance with a statutorily required formality.

The court therefore found the 2014 will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 will, the 2011 will was declared the will of the deceased.

This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your will is invalid, and it is advisable for you to print the will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the will at his office.

Reference List:

  • Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ)
  • Wills Act, Act 7 of 1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW BINDING ARE BODY CORPORATE FINES?

In an estate or sectional title scheme, it is challenging to ensure that everyone will stick to the conduct rules and to aid this, body corporates often fine the chancers. How far can the body corporates stretch their fining, and are these fines binding?

Each body corporate may choose what to impose formally in their code of conduct unless a rule is already part of the conduct rules in terms of the Sectional Titles Act. This is the only way the fines can be binding as enforceable, and they have to be reasonable and fair.

When fines are imposed, they cannot favour or benefit certain residents while leaving others out of mind. Substantially, they must serve the same purpose. The notification of a fine must be received by the owner or resident through writing. There is a correct way in which fines may be imposed:

  1. Complainants to lodge complaint

This must be lodged in writing or through an incident report to the trustees or the estate’s managing agent.

  1. Notice of particulars of the complaint

The owner and the tenant, or the resident, must be given a notice of the particulars contained in the complained as well as reasonable time to respond to the complaint. The resident/tenant must also be given enough information regarding the incident, including the rules that they may have broken.

  1. Second notice

Should the owner or resident not heed the first notice, a second notice may be issued mentioning the contravention is continuous or has been repeated. The transgressor must then be invited to a trustee meeting where they will be given a platform to present their case or defend themselves.

  1. The hearing before the fine

Before a fine is imposed, a hearing must have taken place. In the meeting, witnesses may be called to testify in favour of the transgressor and the transgressor may state their side of the story. Those who laid the complaint may also be cross-examined.

  1. Discussing evidence

Once the hearing is over, the trustees may then review the evidence presented to them and make a decision on whether or not to impose the fine.

If a fine is imposed, the amount should be reasonable, substantial and be proportionate to the purpose of the penalty.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)