ECSTATIC!!!

I want to deviate somewhat from the usual write-ups. Maybe I am a little bit nostalgic especially if you consider that I am not a rugby fan at all. Yet, digging deep into my memory bank, I remember the late Gerhard Viviers and his radio commentaries on boxing and rugby. 

Old Spiekeries!! 

That was his nickname. 

I mostly concentrated on his boxing commentaries, whereas my late father loved listening to Spiekeries' broadcasts when the Boks were taking on the world. 

During those years we even had a Jewish rugby player with the name of Syd Nomis who made it to the Springboks team. Gerhard got excited about this player - you can listen to Gerhard by clicking this link. I can still see Syddie grabbing the ball and off he went and that is without computers, TV or YouTube!! Please listen to this sound clip.

I give credit for this image I downloaded from the internet - thank you and I honour you as the source.

And then there is this soccer commentator from Iceland Gudmundur Benediktsson who also got excited about his soccer team. This is a must. This video clip of Gudmundur reminded me of Gerhard Viviers many many years ago. BBC Radio had a follow-up with Gudmundur and you can listen to it by clicking here. He doesn't know what he was saying - I really think that it does not matter what he said. I assure you that I don't know a word of Icelandic but looking at this video clip, I understand it perfectly well.

Why do I write about this event? Because technology is at our fingertips - it is so prevalent and it is mind-boggling. Gudmundur's broadcast happened far away and I was able to enjoy it. That is not the only reason why. 

Prof Willie Van Der Westhuizen recommended the other day to us attorneys to get Clem Sunter's book  THE FOX TRILOGY co-authored with Chantell Ilbury. Last nigh I got another book by Clem 21ST CENTURY MEGATRENDS PERSPECTIVES FROM A FOX. 

My wife and I had supper at a restaurant and I read her a short story from that book: The disappearing art of handwriting. He tells this story of him sitting on an aircraft busy writing something with his hand. A young lady watched him while she was writing/typing on her laptop. You see the difference? Him writing by hand; she typing. 

My wife wrote a letter to our son who practices as an attorney in Dubai and sent it to him when we sent his bicycles to him in Dubai. It touched my son's heart to the extent that he published it on his Instagram account. You can look at Moeks's letter by clicking here. 

Clem Sunter's story goes back to 1980's sitting with his mother's handwritten love letter to him. If I read Clem's story correctly, it seems as if Clem had that letter with him on the aircraft. Can you imagine what that letter did to this world renowned authority? Keeping his mom's handwritten letter with him on the aircraft - is he carrying this letter in his pocket since the 1980's? 

In essence Clem juxtaposed the old and the new. 

This is in essence my stories as well: juxtaposing two eras. And both are valid.

When last have you written a love letter by hand? I haven't for some years. The last I can remember was to my mom some years ago when I was waiting for my flight from Durban to Joeys. 

Read More

THE SCOURGE OF MODERN DAY SLAVERY: HUMAN TRAFICKING: A SEMINAR

COMBATING HUMAN TRAFFICKING

Please take notice of this important seminar that is scheduled for 1 December 2016 at Webber Wentzel Sandton. 

I urge you to read my blog post below. It is staggering that human trafficking is labelled as the fastest growing criminal activity in the world second only to the drug trade. The drug trade and human trafficking or modern day slavery are bed fellows - inseparable! 

I think this sketch was published in THE ECONOMIST of some years back and I would like to give credit to this publication and artist. 

I saw a post on Facebook of one of my FB friends about slavery and I reacted to it. It lead me once again to think about a lecture I gave at the West Gauteng Branch of the Genealogical Society of South Africa [GSSA] during August 2014 about modern day slavery. I recall vividly how shocked the members were to learn that slavery is "... alive and well even in South Africa ...". It seems to me as if it had the same effect tonight on FB.

André P Brink, one of our most prominent and eminent authors our country ever produced, published at least two story books on slavery namely: PHILIDA & HOUD DEN BEK. And it seems to me as if we got stuck on this idea about slavery. 

Yes, I am aware that slavery was outlawed many years ago and Brink wrote about the effects it had on the people during those times. Yet, you should remember that it was only outlawed at the time. Slavery is since then illegal but so is murder. Oscar Pistorius acted with disregard of this simple fact and today he is a murderer. So is slavery illegal, but it is still practiced. 

I invite you, if you are prepared to go deeper into this scourge of modern day slavery to have a look on the website of NEFARIOUS by clicking on this link. I further invite you to explore that website. Or go to this site by clicking on this link. You may even just use our old friend Dr Google by typing "modern day slavery" or click here. 

I trust that when you go to bed tonight that you will be acutely aware of this scourge and that you will say a word of prayer to Jesus Christ. And maybe, just maybe by tomorrow you might have done something extra for these people. Or for refugees. 

Read More

HUNGRY PEOPLE ARE LOOTING SHOPS IN VENEZUELA

MADONNA AND CHILD

After I cooked Kudu mincemeat meatballs, rice and gem-squashes for me and my wife and daughter I am feeling quite desperate to look at and read reports of hungry people looting shops for food. You can access the link here.

And I am reminded of an incident some 40 years back when I had to prosecute a young mother who fell on hard times.

I recall the young mother [she was about 18 years old at the time] I had to prosecute for shoplifting in the Booysens area, in greater Johannesburg. She was employed by a big company as a saleslady.  The dress she wore was so washed out and thin that you could almost see her skin beneath it. The image I recall of her was of a woman who was desperate; life was tough, very tough and she braved it alone. Well, I thought she was alone. It was before our first child was borne and so baby diapers were academic for me. My wife regularly bought skim-milk for us. 

Then she stole baby diapers and skim-milk. This tells you that she was not alone - there was someone she had to care for even if it calls for stealing. 

She looked at me, then she looked at the magistrate; she started talking and she told the court her story. She was a single mom because the father of the child absconded and just ran away. She had to fend for herself - she couldn't rely on her parents either. Her baby needed diapers and was hungry. The court found her guilty of theft and then gave her a fatherly talk. The magistrate advised her not to steal again, but rather approach her employer and ask for food and diapers. 

Shall I ever forget this incident? It happened about 40 years ago and I can still feel her eyes on me. 

There were some hungry people in Venezuela who lost their lives after they clashed with riot control police officers. What a dreadful thing to go on the rampage to get food and then only to be met with bullets and to die not of hunger but of a bullet.

I don't even know whether I want to put up a photograph - shall I publish a photo of the looters? Or the Police with their guns at the ready? I think the Police must have been quite upset for enforcing law and order in the face of desperate hungry people. Yes, we should maintain law and order; but on the other hand what hand does the Venezuelan government have in creating a situation like this?

While I was typing I thought of a photograph I took of a young mother and her baby - I call it MADONNA AND CHILD. Maybe this is the most appropriate photo. What do yo think?

Read More

THE LAW IS NOT A CHEMICAL PROCESS NEITHER MECHANICAL

THIS IS WHAT HAPPENS IF YOU DON'T ATTEND TO THE 

MECHANICAL SIDE OF THINGS

There is substance in my slogan and it is succinctly stated in my caption: THE LAW IS NOT A CHEMICAL PROCESS NEITHER MECHANICAL.

Whenever you cross over any traffic intersection you should be very careful, because a vehicle does not stop automatically. It is the driver inside that vehicle that took an intelligent decision [hopefully!] to stop that vehicle. It is not the robot that stops that vehicle.

The trains in Dubai from the airport to the city are fully computerised and stop at designated stations timeously and start timeously as well.

The old VW Beetle is in that shape because nobody took time and money to attend to the mechanical side of things.

The law does not operate like a robot at a robot controlled intersection, neither does it operate like the trains in Dubai, nor does it attend to itself like the VW.

It is people that drives it - have a look again at the footage of the trial of Oscar Pistorius - you can click this link. You will notice it is people that are involved. Bear in mind that anything that happens in a court of law are driven by people - even the air conditioning.

Read More

Chinese Lawyer had his clothes ripped off while he was in court

Chinese lawyer who was stripped in court by Police officers while two judges were looking on

Do you think that our situation in our South African Courts are bad? Well, not quite and I don't suggest that we are getting there. No not at all. Do you know what happened to a Chinese lawyer who was arguing a matter in court? Chinese police officers approached him and, in front of two presiding judges, they started to rip his clothes of his body. And to top it all, two judges did absolutely nothing to stop that. You can read it by clicking on this link.

I reminds me of an incident that happened to me some years ago in Roodepoort Magistrate's Court while it was still in the first building in the CBD opposite the Post Office building. I was waiting for my matter to be called when I noticed that the SAP were off loading prisoners to attend court. They marched past me and amongst them  I saw a black man running in line and he only had his underpants on.

I went into the courtroom and the next moment his matter was called. He appeared in front of the magistrate still in his underpants. And the magistrate did not blink an eyelid and proceeded with the matter.

I rose and requested the attention of the court. The magistrate asked me whether I am appearing for the accused to which I replied: "No." He instructed me to sit down. I refused and told him I am an officer of this court and I find it totally unacceptable and degrading not only for the prisoner, but for me as a proud officer that this man is appearing half naked. It was degrading for the public as well. 

Human rights and the dignity of the prisoner should prevail in court as well - and that was without our Bill of Rights to be found in our Constitution.

The magistrate instructed me again to take my seat; I once again refused. He threatened me with contempt of court proceedings. I stood my ground and insisted that the court should  give the accused the opportunity to get dressed. Only then, and begrudgingly he adjourned the court and gave orders that he be clothed properly.

I waited to see what was going to happen. When the court resumed, he was dressed properly.

You as an individual can  and should make a difference and make the world a better place to live in - one at a time. Start doing that.

I am not suggesting that you don't do that - please write me an e-letter at my e-mail address and tell me. Maybe I will post it on my blog? You will find my e-mail address when  you access CONTACT US.

Read More

Life rights for senior citizens in retirement villages: A checklist for attorneys

RETIREMENT VILLAGE

Life rights for senior citizens in retirement villages: A checklist for attorneys

WARNING: This does not constitute legal advice. You are however  strongly advised to seek legal advice on this topic of retirement villages. It is complicated matter.

General Introduction

The laws applicable to entitlement in respect of immovable property has seen dramatic changes brought about by modern society. Retirement villages (RVs) are being built in every province and retired people buy into these RVs – some to their financial detriment while others are completely satisfied. Some 24 years ago the Housing Development Schemes for Retired Persons Act 65 of 1988 (the Act) was promulgated. The main purpose of the Act is to regulate the RV industry.

Retired persons should look out for a RV that will suit their special needs best. Some RVs provide medical care, high security and related facilities and some cater specifically for the elderly who are debilitated.

Retired persons want a safe haven that will care for them in their old age while they can live relatively independently. Such a person is prepared to buy ‘life rights’ in a RV. It is referred to in the Act as a ‘housing interest’, which is available exclusively to those who are 50 years or older. ‘Life rights’ and ‘housing interests’ should be treated as different names of the same thing.

This section of the commercial sector in South Africa is heavily regulated by about 20 statutes, regulations, municipal by­laws and charters applicable to the elderly. This article will only describe in concise terms the applicability of the Act.

There were some drastic changes and new additions to the statutory laws in the past 24 years. The Act has been amended three times and the regulations were amended once. The Aged Persons Act 81 of 1967 (interlinked with the Act) has been repealed in its entirety and was replaced by the Older Persons Act 13 of 2006 and regulations.

The documentation of any home for the aged in operation and registered prior to 1 April 2010 should therefore be inspected closely to bring it in line with the requirements of the Older Persons Act and its regulations.

A housing scheme for retired persons should not be confused with a development scheme in terms of the Sectional Titles Act 95 of 1986 or a share block scheme in terms of the Share Blocks Control Act 59 of 1980.

A retired person is someone who is 50 years or older. In other statutes, such as the Older Persons Act, the threshold is 65 years or older for males and 60 years or older for females.

These life rights are normally sold the first time by the developer or by estate agents. A person who sells a housing interest for the first time is also a developer.

The agreement should be in writing (s 2)

It is obligatory that the agreement be reduced to writing and signed by all the parties. If the contract is signed by agents, the agent’s authority should be in writing. The law pertaining to contracts entered into by trusts and/or companies to be formed is intact and should be followed implicitly (s 2).

If a client has not signed a written agreement, regard should be had to s 8(2), which might come to the rescue of a seemingly hopeless situation.

Checklist for the contents of the contract (s 4)

Section 4 prescribes the contents of the agreement.

Below is a checklist based on s 4:

• The names of the purchaser and the seller and their residential or business addresses.

• What is the legal basis for the housing interest?

• How long will the person have the right of occupation?

• Is the housing interest registerable?

• Has the title deed been endorsed that it is subject to a housing development scheme?

• Is the property described properly? In what magisterial district is it located?

• Is the seller the registered owner? If not, who is?

• If someone else is the owner, more information is required, for instance, on what basis does the seller sell the life rights? The contact details of the owner should be available.

• Is the land subject to a mortgage bond? If it is, how much is outstanding? How much of the purchase price will be used by the seller to repay the mortgage bond?

• How much will the life rights cost?

• What is the amount of interest payable annually? What is the rate?

• If payable in instalments, how are the instalments calculated?

• When are these instalments due?

• Have you received a certificate issued by the architect or quantity surveyor that the RV was erected in accordance with the approved plans? If not, when will it be received?

• If there are house rules, where are these kept and when can they be inspected? What kind of services or facilities do you buy? Are there nursing care and frail care available? Are these services and facilities available to you? Is the RV mainly for debilitated people?

• What official language do you want the contract to be in?

• When will you be able to move in and when will the risk pass?

• Whose responsibility is it to take out insurance?

• Is there an amount payable as endowment, betterment or enhancement levy, a development contribution or anything similar? If yes, to whom and how much is outstanding?

• Who will pay for the contract and the transfer of the life right?

• If the seller is the owner of the land, he or she should assure you that he or she will not take out a further mortgage bond.

• If you are entitled to have the land transferred to you, when and how much will you have to pay? Who will attend to the transfer?

• You should be given an estimate for the next three years what the expenditure for the control, management and administration of the RV and all the services and facilities will be. It must also be clear who will be liable to pay it and assurance must be given that you will not be billed for it over and above your monthly levy.

• The levy should be clearly spelled out for at least two years in advance.

• If you have not received the architect’s or quantity surveyor’s certificate, you may cancel the agreement and institute a claim, or you may abide by the agreement and not pay any interest.

• Exactly how many life rights are there in the housing development scheme?

• The management structure or proposed management structure should be spelt out.

• The regulations can prescribe anything else that should be included into the contract.

The title deeds should be endorsed (s 4C).

The title deeds of the property should be endorsed that it is subject to a housing development scheme, failing which a person may be fined R20 000 (maximum) or alternatively sentenced to five years’ imprisonment.

Endorsements are prescribed by the regulations relating to the Endorsement of Title Deeds published 31 August 1990. Any developer may request the registrar to endorse the title deeds, even if it is not necessary to have them endorsed.

If the housing interest is sold for the first time (s 6)

If a housing interest is sold for the first time, the developer should give the purchaser the following three documents:

• A certificate by an architect or quantity surveyor that the housing scheme has been erected substantially in accordance with the approved building plans and not in contravention of any by­laws. This certificate should also state that the building is sufficiently completed for the purposes of the scheme.

• The purchase agreement that complies with section 4 of the Act.

• A certificate that the title deeds to the land have been endorsed to the effect that the property is subject to the housing development scheme.

A developer may not receive any consideration or any part of it, without giving these three documents to the purchaser. If he or she does, and he or she is subsequently found guilty for being in default, in a criminal trial he or she may be fined R20 000 or alternatively be sentenced to five years’ imprisonment.

The deposit may, however, be paid into the trust account of an attorney or an estate agent. If the deposit is paid to the developer, he or she should give the purchaser an irrevocable guarantee issued by a financial institution that the money will be paid back to him or her if the developer fails to perform in terms of the agreement. However, if the developer becomes insolvent, then the money paid becomes immediately due and payable to the purchaser.

RVs exclusively for retired persons (s 7)

The right to occupy this property is reserved exclusively for the retired person or spouse and nobody else. All the owners may grant written consent to someone else than a retired person to occupy the land. Contravention hereof is an offence and liable on conviction with a fine of maximum R1 000 or six months’ imprisonment.

You should therefor differentiate between ownership and the right to occupy the property. In essence it means that a person younger than 50 years of age may be the registered owner of that specific property, but is excluded from living there until he/she attains the age of 50.

Consequences of contracts that are void or cancelled (s 8)

There are various consequences that flow from contracts that are void or cancelled.

Section 8(1) is very involved and should be read with great care.

Consequences of defective contracts (s 8(2))

It is quite clear that a contract should be in writing and signed by the parties, failing which it is of no force or effect.

Section 2(1) is unequivocal about this; it is, however, subject to s 8(2).

The legislature made provision for those occasions where there is no written contract. If a purchaser has made full payment and the land has been transferred to him or her, then this alienation is valid from the beginning. The same applies to a housing interest that has been transferred.

Relief the court may grant (s 9)

This section assists the purchaser first and foremost and sets out the relief a court may grant in respect of disputed contracts.

If a contract does not comply substantially with s 3 (the language the contract has been written in) or s 4 (the contents of the contract), the purchaser has a claim. If the seller has failed to comply with any obligation of the contract or has contravened any provision of a regulation and the purchaser has suffered any prejudice, then litigation might ensue. It is extremely wide and may be abused by purchasers who are at loggerheads with sellers or developers.

The court retains its wide discretionary powers supplemented by s 9. A court may –

• in addition, reduce the interest rate applicable if it is just and equitable;

• order rectification of the contract; or

• declare it void ab initio; or

• grant alternative relief.

The regulations

If a housing development scheme is erected in terms of the Act then these regulations are applicable.

If it is developed in terms of the Sectional Titles Act or as a share block scheme in terms of the Share Blocks Control Act, then regulations 7 to 14 are not applicable.

Definitions such as ‘accommodation’, ‘common property’, ‘facilities and services’, ‘housing development scheme’, ‘the managing agent and the managing agreement’ should be looked at carefully.

The developer is under compulsion of the law to have a host of prescribed documents ready to give to an intended purchaser. It is safe to state that the contents of most of these documents were already alluded to in the discussion above about the contents of the contract (s 4).

The penalty for non­compliance is R 6 000 or 3 years’ imprisonment.

Conclusion

The Act is not perfect.

It is an attempt to regulate the market and to protect a retired person. These housing schemes are very popular and in high demand. If the contract complies substantially with the law as stated above, it might be assumed, all other things being equal, that it is relatively safe to enter into such a contract. If a developer is diligent, he or she should consult a lawyer before embarking on such a development scheme.

This article was first published in our Attorney's magazine DE REBUS 2013. DE REBUS granted me permission to publish it on my blog and I do acknowledge their consent herewith: Thank you. 

Read More