EY Suart Attorneys

To all our clients, colleagues and associates, we wish you a Merry Christmas and a prosperous 2020!
From all of us at EYS Inc.

This newsletter is for our valued clients and is intended to inform them of recent developments in our law and of other matters of interest. This newsletter and other articles are available on our website. Kindly advise should you not wish to receive this newsletter in future and feel free to distribute it to your friends or other interested parties if you so wish. Contributions are made by our directors and professional assistants.  Please also refer to our disclaimer at the bottom of this newsletter.

 

THIS MONTH:

(1) LOST DEEDS MAY DELAY FUTURE PROPERTY TRANSACTIONS – AMENDMENT OF REGULATION 68 OF THE REGULATIONS TO THE DEEDS REGISTRIES ACT NO. 47 OF 1937

(2) WHEN CAN A CHILD’S WISHES BE TAKEN INTO CONSIDERATION?

(3) MAY YOUR BIOMETRIC ACCESS TO YOUR COMMUNITY SCHEME BE DEACTIVATED DUE TO UNPLAID LEVIES???

(4) PITFALLS ENCOUNTERED WITH APPLICATIONS FOR DEFAULT JUDGMENT FOR OUTSTANDING LEVIES

(5) PITFALLS ENCOUNTERED WITH APPLICATIONS FOR DEFAULT JUDGMENT FOR OUTSTANDING LEVIES

(6) ABOUT US

(7) SEASON GREETINGS

1) LOST DEEDS MAY DELAY FUTURE PROPERTY TRANSACTIONS – AMENDMENT OF REGULATION 68 OF THE REGULATIONS TO THE DEEDS REGISTRIES ACT NO. 47 OF 1937

For purposes of the registration of various property transactions (examples: registration of a transfer, bond cancellation, etc.) at the Deeds Office, the Deeds Office requires the submission of the original Deed of Transfer or Mortgage Bond.

If the original Deed of Transfer or Mortgage Bond has been lost or destroyed, Regulation 68(1) of the Deeds Registries Act 47 of 1937, allows the Registrar of Deeds to issue a certified copy (referred to as a “VA copy”) of the Original Deed of Transfer.

Currently: Regulation 68(1) provides that if any deed conferring title to land has become lost or destroyed, a written application for the issue of a certified copy thereof may be made by the holder thereof.

Regulation 68(11) provides that if the registered holder of a mortgage or notarial bond which has become lost, destroyed or unserviceable wishes to cancel such bond, a written application to cancel such bond may be made, which application must also be accompanied by an application for the issue of a certified copy thereof and may be made by the holder thereof.

If the original Deed of Transfer or Mortgage Bond is lost or destroyed, a practicing Conveyancer, on behalf of the registered holder, may lodge an Application to the Registrar of Deeds, to obtain a certified copy of the Deed. The Application must be accompanied by an Affidavit deposed to, by the registered holder, making certain confirmations pertaining to the lost or destroyed document.

Regulation 68 as from January 2020: Initially, certain amendments were published on 25 January 2019 providing for:-

1. notification of intention to apply for a certified copy must be published in an ordinary issue of the Government Gazette beforehand;

2. a copy of all Deeds shall lay for inspection for two weeks from date of publication of the notice affording all persons having objection to the issue of a copy to object;

3. the Application and Affidavit to be submitted to the Registrar of Deeds must be attested by a Notary Public

Implementation of these provisions was suspended.

Further amendments were published on 1 November 2019 with effect from 1 January 2020. These amendments are less impractical than the amendments published on 25 January 2019 and can be summarized as follows:

Sub-regulation (1E) provides that: 

“(a) before the issuing of a certified copy of any deed, the applicant must, in a prescribed form, publish a notification of intention to apply for such certified copy in an issue of a newspaper circulating in the area in which the land is situated and in the case of a notarial bond in an issue of one or more newspapers circulating in the area of every deeds registry in which such notarial bond is registered.

(b) Copies of deeds referred to in paragraph (a) shall be open for inspection in the deeds registry free of charge by any interested person, for a period of two weeks after the date of publication of the notice, during which period any person interested may object to the issue of a copy.

(c) All persons having objection to the issue of such copy must lodge such objection in writing with the relevant Registrar of Deeds within two weeks after the date of the publication of the notice.”

In conclusion, and with effect from 1 January 2020, should you wish to apply for a replacement deed, you will need to publish your intention in an issue of a newspaper circulating in the area (and not in the Government Gazzette as provided for in the amendments published on 25 January 2019), a copy of the deed shall lay for inspection for two weeks from date of publication of notice and the Application and Affidavit to be submitted to the Registrar must be attested by a Conveyancer (and not a Notary Public as provided for in the amendments published on 25 January 2019).

These amendments will make an application for lost or destroyed copies more complex, onerous, time consuming and expensive. We therefore call on all property owners who are not in possession of their original Deeds of Transfer, to contact our Conveyancing Department for assistance with an Application for a replacement copy of the said Deed as this can delay a transfer or future transaction.  Make sure you have your Deeds available in safe custody.

Quraisha Dawood - Associate/Conveyancer

2) WHEN CAN A CHILD’S WISHES BE TAKEN INTO CONSIDERATION?

Unfortunately, there is no set age and our law does not specifically state an age where a child’s wishes can be taken into consideration. 

There are however factors that can be taken into account to determine if a child is of sufficient maturity to make his/her own decision and then the court will take the child’s view into consideration. However, the court will always look at what is in the best interest of the child even if it means going against the wishes of the child.

Section 10 of the Children’s Act 38of 2005 (herein after “the Act”) provides that:

“Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration”.

The factors taken into account include (but are not limited to):

• The child’s sex

• The child’s age

• The amount of contact the child has had with each parent throughout their life.

• The accommodation and environment each parent is able to offer for the child, including the educational facilities available.

• The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect by one of the parents).

• The child’s sense of being wanted and being kept secure.

• The child’s own testimony.

• The emotional, physical, moral, and religious well-being of the child.

In special circumstances, a court may consider a child as young as 10 years old to be sufficiently mature enough to meaningfully contribute to decisions about his/her circumstances.

An example would be where there is a dispute regarding the primary residence of a child where the court will then consider the aforementioned factors and consider the child’s views and wishes of where he/she wants to reside, however always upholding the best interest of the child.

The Act recognizes that children (when appropriate) should be given an opportunity to participate in decisions relating to their circumstances and be given a platform to voice their opinions. Each case is however dependent on the circumstances and the personal competencies of the child involved.

Juanné Bester - Associate

3) MAY YOUR BIOMETRIC ACCESS TO YOUR COMMUNITY SCHEME BE DEACTIVATED DUE TO UNPLAID LEVIES???

This issue was dealt with in the matter of Singh and Another v Mount Edgecombe Country Club Estate Management Association (RF) NPC and Others 2016 (5) SA 134 (KZN). The applicant’s (owner) access cards and biometric fingerprint was deactivated by the board of the Home Owners Association on the basis that there were unpaid amounts on the applicant’s levy account.

The Association as respondent contended that the applicant was still able to access the estate, albeit by filling in a “resident’s register” and furthermore that the Association’s action is in line with the provisions of its Memorandum of Incorporation and Rules and that they did not act illegal nor unconstitutional, but in compliance with their governance documents.

The applicant therefore submitted that the respondent’s actions in suspending the applicant’s access cards and biometrics amounts to an act of spoliation, even where the conduct rules authorise such actions, on the basis that the respondent did not obtain a court order for its actions, and accordingly resorted to self-help.

The remedy has been succinctly stated in FirstRand Ltd t/a Rand Merchant Bank and Another v Scholtz NO and Others as follows:

“It protects the possession of movable and immovable property as well as some forms of incorporeal property. The mandement van spolie is available for the restoration of quasi-possessio of certain rights and in such legal proceedings it is not necessary to prove the existence of the professed right: this is so because the purpose of the proceedings is the restoration of the status quo ante and not the determination of the existence of the right. The quasi-possessio consists in the actual exercise of an alleged right.”

The court held that if one accepts that the applicant and his family are entitled to freely enter and exit the estate so as to gain access to the properties which they own or occupy, one has to accept, based on the authority referred to above, that the exercise of their right to do so must be an incident of their possession or control of such properties. Therefore, the court was of the view that the illicit deprivation of the quasi – possession of the right contended for by the applicant is protected by the mandament van spolie.

The court made reference to the matter of Fisher v Body Corporate Misty Bay (2012 (4) SA 215 (GNP)) [2011] ZAGPPHC 234, which case supported the court’s view, in which matter the applicant was a homeowner in a gated community, and his access disc was deactivated due to unpaid levies, it was held: “Access that is intended to retain possession or use of property should be found to be protected under the principle of mandement van spolie. Therefore, any limitation of access that would curtail the applicant's possession or use of the house . . . should be found to amount to spoliation.”

It is a long-established principle that self-help is unlawful and that any provision in a contract providing for self-help will not be enforced by our courts.

It is clear from the above that unrestricted access to the scheme is part and parcel of the owner’s right of ownership, irrespective of what the directors may decide or what may or may not be provided for in the memorandum of incorporation or the rules of the HOA.

Therefore, owners cannot be deprived of access in any way without an order of court authorizing the directors to restrict access.  

Quintin Badenhorst - Associate

4) PITFALLS ENCOUNTERED WITH APPLICATIONS FOR DEFAULT JUDGMENT FOR OUTSTANDING LEVIES

This article focuses on Default Judgment Applications in the Magistrate’s Court and addresses the queries often raised by Magistrates when applications are refused.

A Default Judgment is a judgment entered or given in the absence of a defence of the defendant. 

The relationship between a body corporate and members of a body corporate is governed in terms of the provisions of the Sectional Titles Schemes Management Act, 8 of 2011 and the Regulations thereto (“the Act”).

Magistrates require strict compliance with Prescribed Management Rule 25(1), which rule inter alia requires the trustees of a body corporate to circulate a notice to all members, stating what contributions are payable and when they are payable.

A further stumbling block is levy statements.  The levy statement, which is included in the summons and serves to prove the defendant’s indebtedness to the body corporate, may not reflect any amount that is not a levy or a charge levied in terms of the Act.  Legal fees may not be debited to the levy statement unless the defendant (owner) has consented to payment of legal fees and in which case such consent must be proved.

A massive dead end is often caused by the “opening balance” on the levy statement. The statement may not commence with an opening balance, except where the opening balance is a credit balance.

In order to avoid unnecessary delays with the collection process, it is important to comply with the provisions of Prescribed Management Rule 25 and to carefully consider entries on the levy statement which may not be allowed. 

Carmen Hugo - Candidate Attorney

5) Your beloved pet  …..  CONSIDERED BY OTHERS AS PESTS

The facts:

1. Owners within a Scheme are keeping dogs and cats.

2. The Trustees have notified these pet owners that their pets are causing a nuisance and demanded, in writing, that these pets must be removed from common property within 14 (fourteen) days.

3. The aggrieved pet owners indicated that:

3.1 they have been keeping their pets for many years and will not adhere to the demand;

3.2 they dispute the allegations concerning nuisance caused by their pets;

3.3 they are targeted and that not all pet owners have received demand letters.

The questions:

1. What are the rights of the Trustees to enforce rules and demand removal?

2. What are the rights of the pet owners?

Basic principles to consider:

1. What does the Scheme Rules stipulate?  Does the Prescribed Rules apply, which rules stipulate that pets may be kept subject to Trustee approval and reasonable conditions imposed, or is there a total prohibition against keeping of pets?

2. Rules must be enforced equally upon members of a Body Corporate.

3. The Trustees cannot act contrary to the rules.

4. Each matter must be considered on its own merit and any alleged nuisance must be proved.

Conclusion:

1. Assuming that the Prescribed Conduct Rules apply, which allow for the keeping of pets subject to Trustee approval:

1.1 The Trustees can demand the removal of pets where the rule has not been complied with, i.e. application for the keeping of the pet and approval.  The Trustees can demand removal of the pet and enforce the rule;

1.2 If approval was granted and the pet causes a nuisance, then the Trustees can demand that the nuisance must cease, failing which they can demand the removal of the pet and enforce the rule.

2. Assuming that there is a total prohibition against the keeping of pets in terms of the rules:

2.1 The Trustees have an obligation to enforce the rules and demand the removal of the pets;

2.2 The rules must be enforced equally upon all members.

3. Pet owners can only enforce their rights to keep pets in accordance with the prevailing rules and where they are allowed to keep pets, they must keep pets subject to any conditions imposed and their pets may not cause a nuisance to other members or residents of the Body Corporate.

4. The Trustees must enforce rules and can only act in terms of the rules.  If the rules allow for the keeping of pets and if the need is expressed by members to prohibit the keeping of pets, then the Conduct Rules will have to be amended.

5. Any amendment will have to take into consideration the existing rights of members who keep pets, which rights will have to be preserved within the amended rules until the pet (or pets) in question, dies.

6. To enforce the rules, the Trustees can apply for an appropriate order to the High Court or apply to CSOS for appropriate relief.

Elmo Stuart - Director

6)  ABOUT US

To view our previous newsletters, please visit our website on http://www.eyslaw.co.za.

7)  SEASON GREETINGS

We wish to take this opportunity of thanking you, our valued clients, colleagues and service providers for your loyal support during the year and wish you all a very blessed and safe festive season, a Merry Christmas and a prosperous 2020.

Kind regards,

EY STUART INC.

Disclaimer: The information disclosed herein is not intended to constitute legal advice and is not guaranteed to be correct, complete, or up-to-date. You should not act or rely on any information emanating from this Newsletter without seeking the advice of an Attorney, as the facts relating to your circumstances may influence any advice or information conveyed herein. Should you require legal representation, then please do not hesitate to communicate with us for further information and our standard mandate terms.