Costs awarded to the successful party:

Within our legal system, the general principle is that the court hearing the matter will award the costs of the suit to the successful party. Contrary to popular belief, this does not mean that the unsuccessful party will simply pay all your legal fees — it is not so straightforward unfortunately. There are particular tariffs and scales which the court use to determine the value and/or cost of specific legal services performed throughout the legal suit and which costs can be recovered from the unsuccessful party. This however, does not directly correlate with the fees you pay your attorney for performing those particular legal services and as a result, you are not able to recover all of the fees you paid your attorney and end up having to carry the difference. In simple terms, your attorney will charge you an agreed upon hourly rate for any work performed on the matter, which would be stipulated in the fee agreement concluded between yourself and your attorney at the outset of the matter, but that hourly rate generally far outweighs the values provided for in the tariff scales which can be recovered from the unsuccessful party — resulting in a situation where you are unable to recuperate all of the funds you have paid towards legal fees.

Different cost scales:

There are also different tariff scales to be used depending on the value of the claim as well as the particular court you find yourself litigating in. The Rules of Court set the tariffs applied to Magistrate’s Courts and make provision for four (4) scales (A through to D) based on the value of the successful claim. Scale D allows the highest proportion of legal fees and/or costs to be recovered. The High Court and Magistrate’s Court also utilise different tariff scales with the High Court scales allowing for a much greater proportion of legal costs to be recovered as opposed to the Magistrate’s Court scales. The High Court scales also make provision for advocate fees whereas the Magistrate’s Court scales do not, unless specifically ordered by a Magistrate.

Different cost orders:

Party and party costs: this is the scale of costs most often awarded by a court and comprise of costs incurred in the course of prosecuting or defending a claim in court. These costs are also specific to the actual court case and do not include any costs related to attendances between you and your attorney. Party and party costs are also the least punitive cost scale available.

Attorney and client costs: these costs are essentially party and party costs but include some charges for attendances between you and your attorney. This is a more punitive scale and is not regularly granted by courts save for particular circumstances such as: if there is a clause in a contract which makes specific reference to attorney and client costs (although this is not always observed due to the courts discretion in this regard), or if the court is unhappy with the conduct of one of the litigants and believes that a punitive cost order is warranted and/or appropriate.

Attorney and own client costs: this is the most punitive scale available and entails the actual fees payable by you to your attorney, as per the hourly rate specified in the fee agreement and agreed to between you and your attorney. These costs are very seldomly granted by courts and arise only in the most exceptional circumstances.

Enforcement of cost order:

If you have been successful with your case and the court has awarded you the legal costs (cost order), a bill of costs will have to be drawn up and taxed by the Taxing Master (court official) before it can be enforced and/or executed. This process is known as taxation and involves the Taxing Master determining which costs you will be allowed to recover from the unsuccessful party. Once the bill of costs has been taxed, and in order to recover the legal costs due to you from the other party, you are entitled to enforce and/or execute same as if it were a Court order.

Conclusion:

Please note that this article is not legal advice and is not intended to be a full or comprehensive guide to legal costs, but rather a very broad summary in order to provide you with some insight and a basic understanding of the topic. Should you find yourself contemplating litigation, or should it potentially be on the horizon, we strongly recommend contacting our team and consulting an attorney to obtain the best possible advice.

Article by Liam Labuschagne

The post Brief Summary for Legal Costs in South Africa appeared first on Louise Tonkin Inc.

Debt review is a process regulated in terms of the National Credit Act 34 of 2005 (NCA) and the National Credit Amendment Act 7 of 2019 (NCAA). The objective of Debt review is to bring some sort of debt relief and/or financial reprieve to the consumer. This relief is provided by restructuring the consumer’s monthly obligations and/or monthly debt repayments for a certain duration or until the debt has been expunged.  In terms of Section 86 of the NCA, the consumer will apply to a debt counsellor for relief who will then determine whether the consumer is indeed over-indebted or not. Once a determination has been made and the debt counsellor has subsequently concluded that the consumer is over-indebted, he/she will make a recommendation to the Magistrates Court to restructure the consumer’s credit obligations which would have the effect of reducing the consumer’s respective monthly contributions/instalments by virtue of the debt repayments having been prolonged and extended over a longer period of time. Once the Magistrates Court has granted the judgment in favour of the debt-review process, the consumer is only required to pay the consolidated/reduced monthly instalment to each respective credit provider in accordance with the restructuring order.

Should you think of undertaking and/or entering into the Debt Review process, the following would be worth consideration:

Advantages:

1. Should you have more than one credit agreement, the debt can be reduced and distributed over a longer period of time, thereby reducing the monthly contributions/instalments due to each respective credit provider;
2. Credit providers communicate with the debt counsellor;
3. The assets are protected and therefore the credit providers cannot sue the consumer during the debt review process provided the debt review process has not been terminated by means of a Section 86(10) Notice delivered by the credit provider. Should the debt review process have been cancelled by a particular credit provider, said credit provider will no longer be part of the process and can proceed with summons if it so deems fit.

Disadvantages:

1. The consumer cannot obtain additional credit while under debt review;
2. There are debt review fees;
3. The consumer remains flagged with the credit bureau’s until such time that the consumer has repaid all credit agreements other than long term agreements in certain instances;
4. Debt review does not lessen the burden of current financial loads, it merely distributes it over a longer period of time to make the load more manageable;
5. Debt review is not a process that one can easily cancel and/or remove all traces thereof on your credit record.

It is important to note that the Debt Review process is not a life sentence. In the event that a consumer under Debt Review has settled their debts, then he/she can proceed to obtain a clearance certificate from the debt counsellor. Section 71 of the NCA provides that debt must be fully paid up, however with credit agreements that are long term such as mortgage bonds, the consumer must be able to demonstrate that they can continue to pay the debt and that there are no arrears on the debt.

In light of the above, should you be under financial strain and/or not be able to settle your monthly debt repayments/obligations, entering into debt review proceedings may be worth consideration and may be suitable for your particular situation and/or circumstances. However, as set out above, there are notable disadvantages to debt review proceedings as well and any decision made herein should be carefully considered and be taken on a case-by-case basis.

Article by Karabo Zondo

The post Debt Review In A Nutshell appeared first on Louise Tonkin Inc.

1. buying in a sectional title scheme
2. securing life rights to a unit in a life rights scheme
3. investing in a share block scheme

Making the correct decision can be a daunting task and therefore, it is important for prospective retirees to acquaint themselves with an understanding of what each separate model entails before being able to make an informed decision in line with their own specific needs and personal preferences.

1. Sectional Title Scheme:

Sectional title ownership is a fairly familiar concept to most people in South Africa today as it is a popular means of residential housing for people of all ages. Although not exclusive to retirement homes/villages, sectional title schemes are nevertheless a popular choice for many retirement homes/villages and for that reason is worth consideration and discussion. From the outset, sectional title schemes are governed by the provisions of the Sectional Titles Act 95 of 1986, which requires that a body corporate, consisting of all the various unit owners in the retirement complex, be formed for the purpose of assuming responsibility for the day-to-day running and financial management of the common property. Important distinguishing factors to consider pertaining to sectional title schemes are as follows:
A retiree who decides to purchase a unit in a sectional title scheme acquires full ownership of the unit and an undivided share in the common property. As a result, a formal transfer of property must take place and registration must be effected through the Deeds Office.
Consequently, there are additional costs for which the purchaser will be liable before transfer can take place such as conveyancing/transfer costs, bond costs (if subject to finance), and transfer duty (if applicable).
Additionally, the residents or unit owners of the complex/village are responsible for ongoing maintenance and cost management pertaining to the respective retirement complex.
Another important factor to consider is that once the unit has been purchased and transfer has taken place, the property forms part of and vests in the owner’s estate meaning he/she is able to bequeath the property to family members/loved ones upon his/her death in terms of a Last Will and Testament.

2. Life Rights Scheme:

Although materially and structurally different to the concept of sectional title schemes, life right scheme structures are another popular choice for retirement homes/villages and developers to utilise. Purchasing a right in a life right scheme may be a desirable option for a prospective retiree due to its less formal and cost-effective nature, all the while maintaining some similarities and functionality to the lifestyle dynamic offered by sectional titles schemes. Purchasing a right in a life right scheme will bring about some legal consequences and implications worth consideration:
When purchasing a right in a life right scheme, the purchaser does not acquire ownership of the unit/property but rather purchases a right to live, reside and use the unit for the remainder of his/her life. Ownership of the unit does not pass hands and the developer/owner of the retirement complex retains sole ownership of the unit.
The right to live, reside and use the unit ceases upon death of the retiree and such right then reverts back to the owner/developer of the retirement complex who is then able to resell the right to a new prospective purchaser.
This right cannot be alienated and therefore, cannot be bequeathed to family members/loved ones upon death in terms of a Last Will and Testament. However, upon resale of the right after the retiree’s passing, the retiree’s deceased estate will receive the original purchase price initially paid for the right (this can vary from scheme to scheme).
Since there is no transfer of ownership, purchasing a right in a life right scheme can prove to be more cost-effective as there are no transfer costs payable by the retiree.
The responsibility of ongoing maintenance and upkeep does not fall upon the shoulders of the residents, but rather the owner/developer of the retirement complex due to him/her retaining sole ownership of the unit.

3. Share Block Scheme:

Share block schemes are generally run by property holding companies and subject to the Share Blocks Control Act 59 of 1980. In contrast to both sectional title schemes as well as life right schemes, a retiree who elects to purchase a share in a share block scheme does not take transfer of or acquire ownership of the property, neither does he/she acquire a right to live, reside and use the property, but rather purchases shares in and becomes a shareholder of the company which owns the retirement complex/village. Factors to consider in this regard are as follows:
When a retiree purchases shares in a share block company, he/she is issued with a share certificate and becomes a shareholder of the share block scheme.
Residents are required to sign a use/occupation agreement which entitles him/her as a shareholder, to use and occupy a unit for as long as he/she remains a shareholder of the company.
Again, in this instance there is no transfer of immovable property and ownership of the unit is retained by the share block company. This in turn results in lower acquisition costs for the retiree as no transfer costs are payable however, transfer duty can be applicable upon the acquisition of the shares depending on the purchase price.
The acquired shares can be alienated and can thus be sold at any time by the retiree during his/her lifetime at which time he/she will cease to be a shareholder of the share block company. Likewise, the shares can be bequeathed to heirs upon death in terms of a Last Will and Testament however, it is important to note that share block schemes generally impose a minimum age for residents to live in the complex/village (generally 50 or 60 years old). In other words, if an heir of a retiree inherits the shares from the deceased estate, they will not be able to reside in the complex/village unless they satisfy the minimum age criteria of the respective complex/village.
The directors of the share block company are responsible for all management decisions and each shareholder is required to contribute to a levy fund which is used to account for the running and ongoing costs of the complex/village. It is also important to note that the maintenance and/or repair costs pertaining to the shareholder’s unit are the responsibility of the respective shareholder.

In light of the above, navigating the retirement home environment for a prospective retiree is no easy task and evidently, there is a lot to consider depending on one’s personal preference and financial position. This article is not to be construed as legal advice but rather serves as a basic outline of the various retirement home options available and their respective legal implications. Should you find yourself contemplating retirement and potentially buying into one of the abovementioned schemes, we strongly advise consulting an attorney to assist you with making the best possible decision for your future retirement.

Article by Liam Labuschagne

The post Retirement Homes: Various Kinds Of Retirement Home Models For Prospective Retirees appeared first on Louise Tonkin Inc.

A nude principle and/or prohibition / “nudum praeceptum” is a clause in a Last Will and Testament in which the testator bequeaths particular property to a particular person(s) but attaches a condition to the inheritance of that property in that it cannot be sold or encumbered. This results in a situation where the heir cannot freely deal with the bequeathed property and thereby renders the condition unenforceable because it cannot be registered against the property. In the case of Gumbi and Others v Master of the High Court, Johannesburg and Others (21700/2021) [2023] ZAGPJHC 862, Mr Gumbi’s will read as follows:

“I bequeath the residue of my estate to my wife, Nomvula Esther Gumbi (ID[…]), with the proviso that she survives me by a period of 7 (seven) days.

It is my wish that my fixed property shall not be sold but retained as a family home for my children.”

The Applicants in the above matter were the biological sons of the deceased who sought relief on the basis that the above clause relating to the immovable property is a nude principle and therefore, it should be rendered as pro non scripto (as though it had not been written). They argued that should the court rule in their favour, the property would be dealt with and distributed in terms of intestate succession.

However, the court held that even though the clause was indeed a nude principle, it didn’t invalidate the bequest. In terms of the principle of a nude prohibition, the rule imposed is supposed to be in the interests of the owners of the property and the freedom for them to deal with their property as they deem fit. The court quoted the learned authors Olivier, Strydom and Van den Berg explaining the nudum praeceptum as follows:

“‘A testator who attempts to deprive his fully contractually competent legatee or heir of the right to control, or to dispose of the property bequeathed to him/her, by placing the property in the hands of an administrator, or by imposing a restriction on alienation, will not normally bind the beneficiary. Such restrictions are regarded as nude and not enforceable.”

Notwithstanding the above, it is important to take note of the fact that should a testator elect to include a nude prohibition in his/her Will which would essentially render the condition unenforceable, the testator would have to make provision for and include a “gift over” provision in his/her Will for the bequest to succeed. A “gift over” provision is where the testator names a secondary heir and/or beneficiary who would inherit the property in the event of the primary heir attempting to sell or encumber the property and/or contravene the condition imposed in the Will.

Should you wish for us to assist you with drafting your last will and testament, don’t hesitate to contact our offices.

Article by Karabo Zondo

The post Consequences of a Nude Principle/Prohibition in a Will appeared first on Louise Tonkin Inc.

TRANSFER DUTY

Transfer duty is payable by the purchaser on the acquisition of immovable property or the acquisition of a real right in immovable property or the enhancement of the value of immovable property by the removal/renunciation of a restriction (i.e. cancellation of a servitude).

“Immovable Property” is defined as land and fixtures thereon and includes real rights such as servitudes and options.

Transfer duty is payable on the consideration (purchase price) or the fair market value whichever is the higher and is calculated in terms of the prescribed rate set out by the Government from time to time.  Practically in determining “Fair value” SARS has regard to the municipal role and sworn valuations. Where a seller wishes to sell the property to the purchaser for an amount which is less than the market-related value. For example, for the municipal value or less. SARS will then insist on transfer duty being paid on the “fair market value” and call for 2 or 3 agent valuations.  If the seller and purchaser are related SARS will automatically investigate the “fair market value”.  The question is: “How will they know?”  Each and every seller and purchaser will complete and sign a transfer duty declaration which states the:

• Full name and identity number/registration number of seller and purchaser;
• Date of the transaction;
• Purchase price;
• Property description;
• Municipal valuation;
• Declaration of whether the seller and purchaser are related by blood or marriage;
• Or in the case of companies if the company controls or participates in the management of the property.

SARS will scrutinise the information and make sure it is not cheated out of any transfer duty and if happy with the assessment and after payment will issue a transfer duty receipt which is used for lodgement.

The same rate is payable irrespective of whether the purchaser is a juristic person or individual.  The transfer duty currently applicable is as follows:

These are the transfer duty rates applicable on property purchased on or after 1 March 2023.

“Acquisition” is defined as any agreement or act whereby a person disposes or renounces any interest in the immovable property irrespective of whether the transaction is conditional or not.

Therefore, transfer duty is payable within 6 months from date of acquisition.  If not paid within 6 months as aforesaid penalties are charged by SARS at a rate of 10% per annum on the transfer duty amount for each completed month thereafter until paid.  This can include property acquired in terms of an Ante-Nuptial Contract.

In situations where only one-half of the immovable property is being acquired, the rule is that transfer duty is worked out on the full value and then divided in half so as to render the most revenue for the state coffers.

 In cases where something other than money is offered as payment, then in those instances, transfer duty is paid on the value of the thing offered as consideration. 

EXCEPTION WHERE TRANSFER DUTY IS NOT PAID

Section 9 of the Transfer Duty Act provides that transfer duty is not payable in certain circumstances and is thus exempt.  Some of these exemptions are as follows:

• Government bodies and related institutions for example, Eskom;
• Religious and charitable organisations and property acquired for public hospitals;
• Heirs or beneficiaries in terms of an estate or upon the dissolution of a testamentary trust;
• Surviving spouse or heir in an estate;
• A joint owner of property in respect of the acquisition and registration in his name of a defined portion of the property allotted to him upon partition of the property, but not in respect of any consideration payable by him in order to equalize the partition or for any other reason;
• Half share transfer, on portion already owned;
• A surviving or divorced spouse who acquires the sole ownership in the whole or any portion of property registered in the name of his or her deceased or divorced spouse where that property or portion is transferred to that surviving or divorced spouse as a result of the death of his or her spouse or dissolution of their marriage or union;
• Non-profit organisations who are exempt from tax and have a tax exemption number;
• Where there has been an error in the registration;
• If any property has by expropriation or compulsory sale under any law been acquired by the State;
• Voidable transactions in case of sequestration;

If the acquisition of any property under any transaction which for purposes of the Value-Added Tax Act, 1991, is a taxable supply of goods to the person acquiring such property.

Article by Louise Tonkin

The post Transfer Duty appeared first on Louise Tonkin Inc.

In practice, when an immovable property is sold out of an estate, the same conveyancing process is followed as would otherwise have been the case in a normal transaction between seller and purchaser — with the only difference being that the property is vested in the deceased estate and therefore, the Master of the High Court (hereinafter “the Master”) has the authority to make the final decision in allowing the sale or not. Generally, when dealing with an estate transfer the conveyancing attorneys have to submit a Section 42(2) endorsement application to the Master, in which the Master’s permission with respect to the sale of the property to a third party is sought subject to a few conditions:

• The sale of the immovable property must be in the interest of the estate;
• The sale agreement concluded between the Executor/Executrix (on behalf of the estate) and the purchase is valid and not detrimental to the estate in any way; and
• Each and every beneficiary with a material interest in the estate must give their consent, in writing, to the sale of the property and confirm that they do not have any objections or contentions to the sale.

If the Master is satisfied in terms of the above requirements, he will endorse the Power of Attorney to pass transfer in terms of Section 42(2) of the Administration of Estates Act 66 of 1965 (hereinafter “the Act”), essentially giving his approval and the transfer process can then proceed and the property can be sold. This seems easy and straightforward enough however, in a situation where one of the heirs refuses to consent to the sale, the situation becomes slightly more intricate and the transfer process can be brought to a screeching halt.

In the event of such a situation arising, Section 47 of the Act makes it possible for an Executor/Executrix to approach the Master with a Section 47 application whereby the Master is requested to either dispense with the dissenting heir’s consent, and/or allow the Executor/Executrix to proceed with the sale in lieu of such dissenting heir’s consent.  In recent times however, the Master has been reluctant to exercise his power and make a determination in terms of Section 47 of the Act and has a tendency to refer families implicated in such a dispute to the High Court for a determination to be made by an appropriate forum. This in itself presents another problem in that even if litigation is instituted in the High Court on behalf of the estate, and a substantial amount of money is forked out to facilitate the costs of litigation, the Courts are not prepared to make a determination and substitute the Master’s decision with that of the Court’s — this is evidenced by the findings in the recent cases of Mar-Deon Boerdery CC v Marais N.O and Others [2021] ZAGPPHC and Bester N.O v Master of the High Court and Another [2023] ZAWCHC, in which the Courts were reluctant to substitute the Master’s discretion with that of their own and subsequently referred the applicant’s back to the Master for a decision to be made.

This has the effect of leaving the Executor/Executrix and the heirs who want to sell the property in the exact same position as they started, only now with seemingly no further option to recourse or a potential way forward as neither the Master nor the Courts are prepared to make a decision.

Therefore, it is crucially important if you find yourself in a similar situation, one where you are a beneficiary of an estate and the intention is for the property to be sold, to ensure that there is consensus between each and every beneficiary on the terms and conditions of the sale before a prospective sale agreement is concluded with a third-party purchaser. This caution would go a long way in ensuring that you do not find yourself in a situation as set out above with no way to progress the sale of the property and ultimately, finalise the estate.

This article is only intended to provide insight and a basic understanding of the current difficulties and uncertainties being experienced in the deceased estate industry concerning the sale of immovable property from an estate when dealing with a dissenting heir, and should not be construed as legal advice. Taking cognisance of the contents of this article may however, greatly assist you in being proactive in order to potentially circumvent the possibility of you ever being confronted with a similar situation in the future.

Article by Liam Labuschagne

The post Sale of immovable property directly from a deceased estate: Section 42(2) and Section 47 of the Administration of Estates Act 66 of 1965 appeared first on Louise Tonkin Inc.

These are defences which can be raised by a debtor or defendant against a claim to repay a debt. They are inserted in contracts or credit agreements precisely to prevent the debtor or defendant from relying on them.  By signing a contract which contains these exceptions the debtor or defendant renounces the right to rely on them later should the debt need to be recovered.

These exceptions are:-

1. Non numeratae pecuniae

This is an exception which may be taken by the debtor on the grounds that, though he has signed an acknowledgement of debt, the amount thereof was not paid over.  The renunciation of this exception puts the burden of proof on the debtor to prove that he did not receive the money.

• Non causa dibiti

This is an exception taken to the effect that there is no causa or reason for the debt.  Renunciation of this exception places the onus on the debtor to prove that the debt does not exist.

• Revision of accounts, errors of calculation (errori calculi) and no value received

These three exceptions are usually taken together and are used where there is an element of bookkeeping or accountancy.  The effect of this renunciation is that the burden of proof is placed on the debtor to prove that an error in calculation exists and that the outstanding balance is faulty.

• De duobus vel pluribus reis debendi

According to this exception two or more persons who are jointly debtor are each liable for their proportional share of the debt.  When this benefit is renounced, it makes two or more debtors jointly and severally liable for the debt.

• Beneficium ordini seu excussionis

This is an exception open to a surety by which he can compel the creditor to proceed against the principal debtor first and obtain all he can from such debtor’s estate before proceeding against the surety.  The renunciation has the effect of permitting the creditor to proceed against the surety before acting against the principal debtor.  In other words, the surety is no longer entitled to force the creditor to take action against the principal debtor first.

• Beneficium divisionis

This exception provides that the liability under a suretyship must be apportioned among the sureties and each surety cannot be sued for more than his pro-rata share.  The renunciation has the effect of permitting the creditor to sue one of the sureties alone without reference to the others and to claim the whole amount of the debt from him.

Article by Nanette Odendaal

The post Renunciation of Exceptions appeared first on Louise Tonkin Inc.

Eviction is almost always the least desirable outcome or course of action for both tenants and landlords as it generally results in a lose-lose situation for both parties however, if a tenant refuses to pay his/her monthly rental the result will more than likely be eviction. From the outset it is worth noting that the law governing evictions emanates from the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE Act) and its purpose on the one hand is to provide for the prohibition of illegal eviction, and on the other to provide for adequate procedures to facilitate the eviction of unlawful occupiers. It is also important to bear in mind that section 26 of the Constitution recognises the right to adequate housing as a basic human right and for that reason no person may be evicted from his/her home without an order of court. It was for this reason that the PIE Act was legislated in line with the aforementioned vision of the Constitution and numerous stringent processes were put in place and must be complied with before a landlord is able to evict a tenant from his/her property, albeit a defaulting tenant.

In a nutshell, the following steps must be followed by a landlord in order to render the defaulting tenant an “unlawful occupier” and to ultimately have the tenant evicted:

Step 1: Failure by the tenant to pay the monthly rental promptly and in full constitutes a breach of the lease agreement which entitles the landlord to recourse. The first step would be for the landlord to send a legal notice to the tenant (letter of demand) notifying him/her of their breach and affording them a period of 20 business days (a calendar month) to rectify their breach (make payment of arrear rental) or vacate the premises, failing which the lease will be cancelled.

Step 2: Upon expiry of the stipulated time period afforded to the tenant, if the tenant has not yet rectified his/her breach or vacated the property, then the landlord is entitled to cancel the lease agreement and must send the tenant another legal notice stating that the lease agreement has been cancelled.

Step 3: Once the lease agreement has been lawfully cancelled and the tenant has been notified thereof, the tenant becomes an “unlawful occupier” as described by the PIE Act and is then susceptible to eviction proceedings and can be evicted.

Step 4: The landlord can now approach the High Court or the Magistrate’s Court to make an application and start with the eviction process.

The above steps are just a broad outline of the process to be followed by a landlord and should not be construed as legal advice or a comprehensive framework for evictions proceedings. This article is only intended to provide insight and a basic understanding regarding the rights available to a landlord and therefore merely outlines the basic process to be followed when confronted with a defaulting tenant.

Ultimately, the process of eviction can be a time-consuming exercise and can end up taking many months before being finalised. For this reason, we would always advise against taking the law into your own hands and would strongly suggest contacting an attorney to assist you with this lengthy and complex process should you ever be faced with a defaulting tenant and require an eviction in the future.

Article by Liam Labuschagne

The post Residential evictions appeared first on Louise Tonkin Inc.

Domicilium citandi et executandi is the Latin term for the residential address which parties choose for the delivery of any legal notice or document that has to be delivered in terms of a contract entered into.

The importance of the domicilium address is that should any notice or document be given to either party by the other party that the party to whom the document is delivered to, receives such notice or document and is aware of any legal proceedings or notices in terms of the contract that they have entered into.

It is also important to note that should the domicilium address of either party to the contract change, that notice is given in writing to all interested parties to change the domicilium address to the new domicilium address.

Let us take for example a mortgagor that defaults on his bond repayments and the mortgagee (the bank) has to proceed with legal action against the mortgagor.  The bank will deliver any notices to the chosen domicilium address specified on the loan agreement and the mortgage bond document itself.  If the mortgagor’s domicilium address have changed and no notice was given to the bank, the mortgagor will not receive the notices sent out by the bank and in the case of a summons being issued, the court may grant default judgement against the mortgagor without his knowledge and without the mortgagor even being aware of such default judgement being taken against him.

Notices served on the domicilium address is considered sufficient notice that the person has received the notice and the person cannot use the excuse that he did not receive the notice because he does not reside at the domicilium address anymore.  The onus is on the mortgagor to advise the bank of any change in his domicilium address.

Similarly, when parties for instance enter into a sale agreement, there will be a specific clause in the sale agreement relating to the domicilium address and both parties must choose their domicilium address where they want to receive notices or documents should same be required.

It is therefore imperative that one understands the effect of choosing a domicilium address.  Delivery of a legal notice or document to the domicilium address is considered sufficient for having received legal notices or documents.

Contracting parties should carefully choose their domicilium address and always remember that a domicilium address can never be a postal address or even the address of vacant land.  The domicilium address must always be a physical address.

It goes without saying that a person must therefore choose his domicilium address wisely.  If you know that you are absent from your chosen domicilium address from time to time, you should ask the person who is looking after the property on your behalf to advise you should any notice or document be delivered or served on the domicilium address.  You should request such person to send you any notice or document delivered to the said domicilium address to your e-mail address or even fax the notice or document to you.

The implications of not providing your chosen domicilium address or failing to give written notice of the change of your domicilium address can have an adverse effect on you and more often than not it is too late for you to react to a notice or document served on your chosen domicilium address and it will often be very expensive to reverse the judgement given against you.

In the case of a director of a company for instance signing surety on behalf of the company, the registered physical address of the company may not necessarily be the chosen domicilium address of the company and the signing official should therefore carefully opt if he wants to use the registered address of the company or his own residential address as the domicilium address for delivery of notices or documents on behalf of the company. Choosing a proper and correct domicilium address will ensure that one always knows if there are notices or documents served on the domicilium address and it will ensure that one has the opportunity to respond to such notices or documents served on the domicilium address.

Article by Nanette Odendaal

The post The meaning and importance of a chosen domicilium address appeared first on Louise Tonkin Inc.

The process to update the General Valuation Roll will be implemented by the municipality on the 1^st of July 2023.

Every four years the City of Johannesburg re-values the properties within its jurisdiction and update the General Valuation Roll, whereby the municipality undertakes to obtain information from property owners, city inspectors and technological means to determine a valuation for each and every property within its jurisdiction.

In terms of section 2 of the MUNICIPAL PROPERTY RATES ACT no 6 of 2004 read together with section 229 of the CONSTITUTION, the municipality is authorised to charge home owners levy based rates, determined by the value of their property.

The main purpose of the General Valuation Roll is for the municipality to ensure that they charge rates that reflect the market value which is fair, equitable and just.

The process to determine the valuation for every property is done through a process of observing:

• property market sales in the area;
• physical inspection;
• soliciting independent data;
• building plans;
• aerial photography of the properties to determine if any improvements have been made.

In situations where there are high walls and no visibility the city will send an inspector to attend on the property to obtain information regarding the property.

Once the valuation roll is completed, an updated municipal valuation will be provided to the public and all Home owners in writing. Home owners have a right to object to the amended valuations of properties, should they believe that the new value is not a true reflection of the property value.

After the inspection, objection and appeal stages have been exhausted, ratepayers will be expected to abide by the determined property values which will be used to levy property rates on a monthly basis for billing purposes. 

Home owners are therefore cautioned to keep an eye out for the notice of the new Valuation roll and submit objections timeously.

By Karabo Zondo

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