Docstoc

Bulletin of

Document Sample
Bulletin of Powered By Docstoc
					BULLETIN 11 of 2011
For the weeks of 18 March 2011 to 25 March 2011


IMPORTANT NEWS / NOTICES / CIRCULARS

Registrars’ Circular No 4 – Information on Deedsview

In terms of the above Circular, external clients are no longer allowed to use the volumes in the basement of the Deeds
Registry. All searches must be done via the Information Section with effect from 28 March 2011.

Contact the Knowledge Centre for copy of the above Circular

The National Consumer Commission Opens its Doors

As from 1 April 2011, the Office of the Consumer Protection will be known as the National Consumer Commission
(NCC). From this day consumers will be able to lodge complaints directly with the new Commission.

For further information http://www.thedti.gov.za

GENERAL

NO MAINTENANCE FOR LOVER

McDonald v Young (292/10) [2011] ZASCA 310

In this case the lover of a wealthy Cape Town woman had his attempt at financial compensation dismissed by the
Supreme Court of Appeal. The appellant and respondent had been living together as husband and wife for seven years.
During the relationship the respondent paid the appellant an allowance, provided him with transport and paid for his
entertainment and overseas holidays. In return the respondent claimed that he maintained the property, which was
registered in the respondent’s name, as per an agreement between the couple. After the relationship broke down, the
appellant instituted and action against the respondent, whose assets were estimated to be worth R30 million, in the
Western Cape High Court for an order declaring that a joint venture agreement existed between the parties in respect of
the immovable property or alternatively for an order that the respondent had to pay maintenance to the appellant. The
application was however dismissed by the High Court and thus the appellant appealed to the Supreme Court of Appeal.

The facts upon which the appellant relied in support of his claim against the respondent are based on the following
namely: that he and the respondent had lived together as if they were legally married and in a stable and permanent
relationship; the fact that the respondent had supported him during the seven-year period that they had resided together
and the appellant had been dependent on such support; the fact that the respondent had in a series of wills made
extensive provision for financial support of the appellant in the event of her death; the fact that the respondent was a
wealthy woman while he had no assets and very limited income; the fact that he had contributed to the maintenance and
increase in value of the respondent’s estate, often at the expense of his own business interest; the fact that he was
reliant on an income from employment and could not, due to his advance age of 59, guarantee for how much longer he
would be able to earn a living; and the fact that the respondent had advised the appellant that she had sufficient funds to
support both of them.

According to the appellant there was a universal partnership that existed between the parties and thus he was entitled to
some form of compensation. The appellant however bore the onus of proving the agreement upon which he relied on as
well as the terms thereof. The court found that with regard to the deficiencies in the appellant’s evidence and the various
                                                                                                                                 2

probabilities, it cannot be said that it measures up to the standard required for acceptability in respect of the existence of
the joint venture agreement. In assessing the probabilities, the conclusion seems to be that the appellant did not
discharge the onus resting on him. According to the court the purpose of their agreement was to give the appellant
financial independence and the respondent could not have contemplated that she would continue to support the
appellant for the rest of his life. Accordingly the Supreme Court of Appeal dismissed the appellant’s application, in
respect of the main claim on the grounds that the appellant failed to prove the existence of a joint-venture agreement.

Concerning the appellant’s claim for maintenance, the law attaches a duty of support to various family relationships, for
example husband and wife; and parent and child. In a society where the range of family formations has widened, such a
duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life
partnerships. Whether such a duty of support exits or not will depend on the circumstances of each case. According to
the court whilst there was a reciprocal duty of support between married persons, no duty of support arises by the
operation of the law in the case of unmarried cohabitants. Thus obligations between cohabitants can only arise during
the subsistence of their relationship based on an agreement between the parties and only to the extent of that
agreement. Accordingly the court found that there was no duty on the respondent to support the appellant, on the
ground that the couple was not married but were merely cohabiting. Accordingly the Supreme Court of Appeal dismissed
the appeal.

PREMIER FOUND LIABLE IN FAILED STERILISATION

The Premier of the Western Cape Province and other v Loots NO (214/2010) [2011] ZASCA 32

In this case the Supreme Court of Appeal delivered an important judgement approving a claim for damages as a result
of a failed sterilisation operation, which resulted in the birth of the unplanned baby. A curator instituted a claim for
damages in the Western Cape High Court against the clinical assistant that performed the sterilisation and the Western
Cape Premier, who takes delictual responsibility for medical practitioners at provincial hospitals, on behalf of Ms
Erasmus, who suffered severe brain damage. In 1999, Ms Erasmus underwent a sterilisation procedure at the Tygerberg
Hospital as she already had three children and could not afford any more children. The clinical assistant however
botched the operation, which ultimately meant that Ms Erasmus had not been sterilised and she later discovered that
she was pregnant. The hospital presented her with an option to terminate the pregnancy, but she and her husband
refused on religious grounds. The baby died shortly after birth, but Ms Erasmus was left severely disabled due to
unforeseen complications during the birth process. It was later found that Ms Erasmus had developed an amniotic fluid
embolism. The High Court found the premier and the clinical assistant liable for damages. Accordingly the appellants
appealed against the judgment.

The appellants raised various defences, the first being that the clinical assistant was not negligent with regard to the
consequences of the failed sterilisation, based on the concrete or relative approach to negligence. According to this
approach it cannot be said that someone acted negligently because harm to others in general was reasonably
foreseeable. A person’s conduct can only be described as negligent with reference to specific consequences. The
approach requires that the general nature of the harm that occurred and the general manner in which it occurred must
be reasonably foreseeable. The appellants relied on the proposition that the harm which Ms Erasmus actually suffered
was not of a general kind, which was reasonably foreseeable. The general harm consequent upon a failed sterilisation
was ultimately pregnancy and the general risks associated with that condition. Thus according to the appellants neither
the harm suffered by Ms Erasmus nor the manner in which it occurred, are included in the category of what can be
regarded as generally foreseeable consequences. The court however did not agree with this argument and concluded
that although the particular complication was rare, it must be included under the general rubric of complications which
was reasonably foreseeable. According to the court the clinical assistant was thus negligent with regard to the harm that
Ms Erasmus had suffered

The second defence raised by the appellants was founded on the contention that the causal link between the second
appellant's negligence and the harm suffered by Ms Erasmus was too tenuous to justify the imposition of delictual
liability on them for that harm. The criterion in our law for determining remoteness is referred to as a flexible test. In
accordance with this test, issues of remoteness are ultimately determined by the board policy consideration as to
whether right-minded people would regard the imposition of liability on the defendant for the consequences concerned
as reasonable and fair. Accordingly the appellants relied on the direct consequences theory and a key element of this
theory is the concept of a novus actus interveniens. By its nature it can take many forms, including conduct on the part
of the plaintiff following upon the wrongful act of the defendant. According to the appellant the decision by Ms Erasmus
not to accept the offer of an abortion tendered by the Hospital, when she was about eight weeks into her pregnancy was
an independent intervening cause. However in order to qualify as a novus actus interveniens the plaintiff’s conduct must
be unreasonable. The court found that the decision by Ms Erasmus and her husband to refuse an abortion cannot be
described as unreasonable as for religious reasons they found the abortion to be unacceptable. Accordingly the court
concluded that in all the circumstances, considerations of reasonableness, justice and fairness dictate that the
appellants should be held liable for the harm suffered by Ms Erasmus. Thus the Supreme Court of Appeal dismissed the
appeal.
                                                                                                                                 3

RIGHT OF PRE-EMPTION TO SHARE IN IMMOVABLE PROPERTY NOT CREATED THROUGH
UNSIGNED AGREEMENT

Bonheur 76 General Trading (Pty) Ltd v Caribbean Estates (Pty) Ltd (116/10) [2011] ZASCA 19

According to the Supreme Court of Appeal a right of pre-emption to share in immovable property cannot be created
through an unsigned agreement. The property in this case was created on 16 November 2005 by virtue of a subdivision.
In terms of the subdivision a 46 per cent share was acquired by Riverbend Trade and Investment 4 (Pty) Ltd and a 54
per cent share was acquired by Vinella Investments (Pty) Ltd. Shortly thereafter in January 2006, Riverbend sold its 46
per cent share to first respondent (Caribbean) and Vinella sold its 54 per cent share to the first appellant (Bonheur). It is
the share of Caribbean that is in dispute in this case. On 25 September 2008 Caribbean sold its share to Wedgeport.
The transfer of share was effected on 1 December 2008 and on the same day a mortgage bond was registered over the
Caribbean Share in favour of Ettin and Greenberg as security for a loan made to Wedgeport. The appellants sought an
order in the South Gauteng High Court setting aside the sale by the first respondent to the second respondent and also
the setting aside of the mortgage bond registered over that share of the property in favour of the third and fourth
respondents The appellants claimed relief from High Court based on the ground that the first appellant had what they
termed a “de facto” right of pre-emption in respect of the Caribbean share and that Wedgeport was precluded from
buying or taking transfer of the share without first becoming a member of the Morningside Wedge Office Park Owners
Association. The second ground on which the appellants relied was founded in the supposed principle that co-owners of
undivided shares in property cannot alienate their shares without the approval of other co-owners. The application was
however dismissed by the High Court and the appellant appealed against the judgment

The “de facto” right of first refusal was alleged to arise from three sources: the articles and memorandum of association
of the Association; co-owners agreement and a joint venture development agreement. In terms of Section 2(1) of the
Alienation of Land Act 68 of 1981, a right to purchase land must be in writing, signed by the parties or their duly
authorize agent for an pre-emption right to exists. However according to the court there was no such right as neither the
first respondent nor the first appellant was members of the Association and had not been required to become such when
they acquired their respective shares. They were thus not bound by the articles and memorandum of association.
Concerning the co-owner agreement relied on by the first appellant; it was only concluded on 12 August, before the
subdivision and before the shares in the property was transferred to the first respondent and first appellant. The
agreement did create pre-emptive rights in respect of some of the properties, but not the residential property in which the
first respondent and first appellant acquired shares. It was however common cause that the agreement had not been
signed on behalf of the first respondent or first appellant, thus it did not confer any right of pre-emption. Furthermore the
last agreement relied on by the first appellant was never really concluded between the relevant parties. According to the
Supreme Court of Appeal no valid right of pre-emption came into existence and thus the High Court was correct to find
that the first appellant had no right to demand that the first respondent share be sold or transferred to them.

Concerning the argument of the appellants that the first respondent is precluded by the common law principles
regulating co-ownership from selling their share, the court found that section 34(1) of the Deeds Registries Act 47 of
1937, expressly allows for such alienation. In terms of the section, should a co-owner wish to alienate only a fraction of
his share, a certificate of registered title has to be furnished to the Registrar. According to the court the conclusion drawn
from this provision, is that such alienation is permitted. The section does not require the consent of the other co-owners.
Thus each co-owner of property is entitled to dispose of his share without the consent of the others. Of course one co-
owner may not use or deal with the common property as a whole without the consent of all the co-owners. But the sale
of a share, does not affect the property as a whole. According to the Supreme Court of Appeal the application was
correctly refused on this ground as well by the High Court. The Supreme Court of Appeal dismissed the appeal.



SEMINARS



DRAFTING OF WILLS              Cape Town                 01 & 02 September           Costs: R500-00 per person for
WORKSHOP 2011                                            2011                        attorneys and candidate attorneys
                               Port Elizabeth            19 & 20 September           R2120-00 per person for non-
                                                         2011                        practising attorneys and other persons
                               East London               26 & 27 September
                                                         2011                        Contact:
                                                                                     Email: info@LSSALEAD.co.za
                               Durban                    17 & 18 September
                                                         2011                        Tel: 012 441 4645

                               Bloemfontein              20 & 21 September
                                                                                                                          4

                                                      2011

                          Johannesburg                14 & 15 November
                                                      2011

                          Pretoria                    17 & 18 November
                                                      2011
  ND
22 CURRENT ANNUAL         Durban                      16 November 2011             Costs: One delegate: R3200-00
LABOUR LAW SEMINAR
                                                                                   Two or more delegates: R3135-00 per
                          Port Elizabeth              17 November 2011
                                                                                   delegate
                          Cape Town                   18 November 2011             10% Discount if register before 31
                          Johannesburg                21 November 2011             August 2011

                          Johannesburg                22 November 2011             Contact:
                                                                                   Email: seminars@lexisnexis.co.za
                                                                                   Tel: 013 268 3255




RECOMMENDED READING

The Consumer Protection Act and the Sale of Property, I Laher, LexisNexis Property Law Digest, Vol 15 No
1 March 2011

Penalty Clauses: The Devil is in the Detail, M Botha & STB Boyes, LexisNexis Property Law Digest, Vol 15
No 1 March 2011


BILLS

LOCAL GOVERNMENT: MUNICIPAL SYSTEMS AMENDMENT BILL, 2010                                          B22A-2010 & B22B-2010
BASIC EDUCATION LAWS AMENDMENT BILL, 2010                                                         B36A-2010 & B36B-2010
COMPANIES AMENDMENT BILL, 2010                                                                    B40A-2010 & B40B 2010


PROCLAMATIONS AND NOTICES

FERTILIZERS, FARM           Proposed regulations regarding fertilizers published for comment      GG 34134 (25.03.11)
FEEDS, AGRICULTURAL
REMEDIES AND STOCK
REMEDIES ACT 36 OF
1947
PENSION FUNDS ACT 24        Notice on Valuation Exemption, 2011 published and regulation 2 of     GG 34152 (25.03.11)
OF 1956                     the regulations published
MEDICINES AND               Regulations relating to a transparent pricing system for medicines    GG 34141 (25.03.11)
RELATED SUBSTANCES          and schedules substances: extension of comments period for
ACT 101 OF 1965             proposed methodology for international benchmarking of prices of
                            medicines and scheduled substances in South Africa published for
                            comment
FOODSTUFFS,                 Draft regulations relating to the prohibition of the manufacturing,   GG 34153 (25.03.11)
COSMETICS AND               importation, exportation and sale of polycarbonate infant feeding
DISINFECTANTS ACT 54        bottles containing Bisphenol A published for comment
OF 1972
PERISHABLE PRODUCTS         Levies on perishable products published with effect from 1 April      GG 34134 (25.03.11)
EXPORT CONTROL ACT 9        2011
OF 1983
ANIMAL DISEASES ACT 35      Proposed notice on the importation of live cloven hoofed animals      GG 34140 (22.03.11)
                            (excluding African buffalo) from countries or zones not recognised
                                                                                                                             5

OF 1984                        as free from foot and mouth disease by the World Organization for
                               Animal Health published for comment
FINANCIAL SERVICES             Draft regulations in respect of appeals to appeal board published       GG 34142 (23.03.11)
BOARD ACT 97 OF 1990           for comment
OCCUPATIONAL HEALTH            Electrical Machinery Regulations, 2011 published and Electrical         GG 34154 (25.03.11)
AND SAFETY ACT 85 OF           Machinery Regulations published
1993                           Incorporation of health and safety standards into the Electrical        GG 34154 (25.03.11)
                               Machinery Regulations, 2011 published
COMPENSATION FOR               Annual increase in medical tariffs for dental services                  GG 34145 (25.03.11)
OCCUPATIONAL INJURIES          Annual increase in medical tariffs physiotherapy services               GG 34146 (25.03.11)
AND DISEASES ACT 130
OF 1993                        Annual increase in medical tariffs private/psychiatric/rehabilitation   GG 34147 (23.03.11)
                               hospitals per diem
                               Annual increase in medical tariffs chiropractic services                GG 34148 (25.03.11)
                               Annual increase in medical tariffs private ambulance services           GG 34149 (25.03.11)
NATIONAL EDUCATION             Proposed 2013 school calendar for public schools published for          GG 34133 (23.03.11)
POLICY ACT 27 OF 1996          comment
SKILLS DEVELOPMENT             Establishment of sector education and training authorities (SETAs)      GG 34155 (25.03.11)
ACT 97 OF 1998                 published
TELECOMMUNICATIONS             Draft code of conduct on the sale, lease, rental or subsidisation of    GG 34131 (18.03.11)
ACT 103 OF 1996                subscriber equipment put on hold until further notice from the
                               Authority
HIGHER EDUCATION ACT           Report of the independent assessor into the affairs of the              GG 34156 (25.03.11)
101 OF 1997                    University of Zululand published
POSTAL SERVICES ACT            Price Cap Regulations for Reserved Postal Services, 2011                GG 34129 (16.03.11)
124 OF 1998                    published with effect from 1 February 2011
                               Accounting Separation Regulations for Reserved Postal Services          GG 34130 (16.03.11)
                               published
FINANCIAL ADVISORY             Notice on Lifting of Suspension of Authorisation [4] of 2011            GG 34151(25.03.11)
AND INTERMEDIARY               published
SERVICES ACT 37 OF             Notice on Suspension of Authorisation [4] of 2011 published             GG 34151 (25.03.11)
2002                           Notice on Withdrawal of Authorisation [4] of 2011 published             GG 34151 (25.03.11)
                               Notice on Reinstatement of Withdrawal of Authorisation                  GG 34151 (25.03.11)
SECURITIES SERVICES            Proposed amendments to the Yield-X Rules of JSE Limited                 GG 34150 (25.03.11)
ACT 36 OF 2004                 published for comment and commencement on 15 April 2011,
                               unless another date is determined by notice in the Gazette
ELECTRONIC                     Independent Communications Authority of South Africa (ICASA):           GG 34143 (23.03.11)
COMMUNICATIONS ACT             Notice of intention to re-categorise medium wave frequencies
36 OF 2005                     published for comment
CONSUMER PROTECTION            National Consumer Commission: Draft guidelines for the                  GG 34163 (25.03.11)
ACT 68 OF 2008                 accreditation of ombud-schemes in terms of the Act published for
                               comment
CIVIL AVIATION ACT 13 OF       Proposed amendment to the Civil Aviation Authority Passenger            GG 34164 (25.03.11)
2009                           Safety Charge Regulations, 2010 published for comment
INDEPENDENT POLICE             Draft Independent Police Investigative Directorate Regulations,         GG 34139 (23.03.11)
INVESTIGATIVE                  2011 published for comment
DIRECTORATE BILL,
B15C-2010


PROVINCIAL LEGISLATION

Eastern Cape

Constitution of the Republic   Buffalo City Municipality: Municipal Water Services By-law, 2010        PG 2532 (22.03.11)
of South Africa, 1996 and      published and various by-laws repealed
Local Government:
Municipal Systems Act 32 of
2000
                                                                                                                       6

Free State

Interpretation Act 33 of 1957   Uniform Patient Fee Schedule (UPFS) 2011 Tariffs published   PG 145 (25.03.11)


Limpopo

Constitution of the Republic    Transfer of functions published                              PG 1917 (25.03.11)
of South Africa, 1996:
Traditional Affairs


Mpumalanga

Mpumalanga Provincial           Mpumalanga Provincial Road Traffic Regulations, 2008         PG 1912 (23.03.11)
Road Traffic Act 4 of 1998
Mpumalanga Local                Date of commencement: 1 April 2011                           PG 1913 & 1915
Government Laws Repeal                                                                       (22.03.11) & (25.03.11)
Act 9 of 2005
                                                                                             PG 1913 & 1915
                                Repeals various statutes                                     (22.03.11) & (25.03.11)

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:13
posted:10/7/2012
language:English
pages:6