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May 18, 2019

Eviction cost

How much does it cost to evict a tenant?

Eviction is an unpleasant word. It conjures up images of an uncaring landlord putting an unfortunate tenant out on the streets. It’s true that there are cases of unfair evictions. But for the most part, rental housing legislation now provides considerable protection to tenants and prevents the abuse of power by landlords that sometimes happened in the past.

Eviction cost - eviction lawyers

The law protects tenants…but it also assures property owners of certain rights. If you own property and it provides you with valuable income, you are entitled to enjoy your property and benefit financially from it without suffering misuse or abuse at the hands of your tenants. If the worst happens and you need to evict your tenants, what is the cost of eviction?

When should you consult an eviction attorney?

If the landlord-tenant relationship is harmonious, and both parties uphold the lease agreement, the word “eviction” is unlikely to arise. Eviction is the last resort when there is an unresolved breach of the lease. A breach can happen for a number of reasons, which may include failure to maintain the property or adhere to the conditions of the lease, but the most common cause for eviction is default in payment of rent. However, a landlord cannot simply evict a tenant for rent arrears. In fact, a landlord can’t evict a tenant at all. Only the courts can do that.

However tempting it may be to “do it yourself”, eviction is a legal process and it requires an eviction attorney. While you may wish to avoid eviction costs, delay in consulting an eviction lawyer can be a false economy. As the rent arrears pile up, you are losing money that may never be recovered. Spending money on expert eviction attorneys will ensure a speedier, smoother course of action and is likely to save you money in the long run – by limiting your losses and restoring the property to its income-earning status.

How much does an eviction cost?

The cost of an eviction will depend on the complexity of the situation. If a tenant is very stubborn and refuses to vacate the property, eviction costs can mount. An unopposed eviction will cost between R5 000 and R15 000. However, if the eviction is opposed, the cost can escalate to as much as R100 000 and the months can drag on. This is not a job for a layperson. Provided your eviction attorney follows the correct process, the court will award the eviction order – eventually – but getting the tenant out is another matter.

Call the Sheriff!

The court may grant your eviction order, but if the tenants simply dig their heels in and refuse to move, you may not legally remove them or their possessions from your property yourself. Only the Sheriff is authorised to do this. If you need the services of the Sheriff to forcibly effect the eviction, the cost will depend on the size of the property and the number of tenants. You can expect to pay from R1 000 to R10 000 in Sheriff’s costs.

Women and children first

Remember that PIE gives special consideration to vulnerable tenants – woman-headed households with children, the elderly and the disabled – so while you are not prohibited from evicting these tenants if they are in breach of the lease, you must allow them more time to find suitable alternative accommodation. This will add to your lost earnings and effectively increase the eviction cost, although it won’t generate additional legal costs.

Can you claim the eviction cost from the tenant?

While it may be technically possible to reclaim eviction charges from the tenant, in reality you are very unlikely to succeed in recouping your costs. If your tenant has defaulted on rent due to inability to pay, you may struggle even to recover the rent you are due. Expecting a financially stressed individual to come up with a five-figure sum in addition to unpaid rent is fanciful. You could sue for it, but the result will be the same. You can’t get blood out of a stone.

Consult a good eviction attorney

As we’ve highlighted, an eviction lawyer is essential if you have a troublesome tenant who doesn’t respond to reason and eviction is your only recourse. You can attempt to obtain an eviction order from the court yourself, but if you are not well versed in rental housing law your chances of success are much reduced. An eviction lawyer knows the intricacies of PIE and will make sure you don’t lose your case on a technicality.

Furthermore, an eviction attorney will save you money, despite the fee charged. If your rental income is R10 000 – R 20 000 per month it won’t take many months of rent arrears to lose you far more than your eviction will cost in legal fees. Cape Town lawyers Simon Dippenaar and Associates are experts in eviction law and will make sure your property is returned to its income-earning status as soon as possible! Contact Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

May 2, 2019

Parental Alienation and the Child

Deliberate parental alienation harms the child more than the parent

When divorcing or divorced parents engage in tactics that give rise to parental alienation, the individual who suffers the most is the child. It may be tempting for an aggrieved parent suffering through an acrimonious divorce to want to portray the other parent in the worst possible light. Hurt and anger can cause a parent to denigrate the partner in front of the child, causing parental alienation or its more severe sibling, Parental Alienation Syndrome. If one parent feels isolated and betrayed, it’s a natural response to want the child or children “on side”. However, whether the other parent deserves the label of villain or not, this behaviour is extremely harmful to the mental health of the child.

A parent-child pair experiencing parental alienation can rebuild a trusting relationship. It takes time and patience but is important for mental wellbeing.

No one is innocent – except the child

According to Cafcass, the UK’s Children and Family Court Advisory and Support Service, parental alienation is rarely one-directional, i.e. aimed at one parent by the other. More commonly, it is a complex set of behaviours that may impact on every transaction within the family. The post-separation environment is a high-conflict zone. Rarely is one parent entirely the victim and the other solely the perpetrator of emotional punishment. When parents are at war, the child becomes collateral damage.

Impact of parental alienation on a child

Parental alienation is emotional child abuse and should be treated as seriously as any other form of abuse. Despite this, it is often not recognised or acknowledged in child custody disputes. The alienated child often feels insecure, anxious and overwhelmed, experiencing feelings of guilt and confusion.

The alienated child may be confused as to the adult-child role, particularly if they are older, i.e. pre-teen or teenage. Triangulation, the emotional manipulation of the child to create an emotional partner, is a common feature of parental alienation. In this scenario the child feels responsible and obliged to step in and protect and care for the victim-parent. The child is robbed of the ability to form trust (the cornerstone of relationships) in intimate relationships and lacks confidence in forming and maintaining healthy relationships. The child may also display clinging behaviour and separation anxiety. They may develop anxiety and have poor peer relationships and other mental health issues. The alienated child suffers from a loss of a sense of self and is placed within a situation that is emotionally beyond their coping ability.

Anyone working with the child or the family should be alert to these symptoms and prepared to step in.

What can be done?

As per the philosophy behind the Children’s Act, the interests of the alienated child must come first. Whether parent, grandparent, caregiver or professional mediator, anyone playing a role in the child’s life must view every family interaction through the lens of the child. The focus should be firmly on the alienated child and the factors that have contributed to the alienation. Then it is critical that steps are taken to rectify the situation. There is no evidence to show that waiting for alienation to resolve itself is effective, nor should children be allowed to decide which parent they should live with.

Rebuilding trust step by step

There are many instances of adults who were permanently alienated from one parent as children and have suffered life-long emotional consequences. To prevent this long-term outcome, there are ways to rebuild trust and re-establish a loving parental relationship. The child and alienated parent need to be assisted in the process of re-attachment, which must be sensitively phased and take account of the child’s developmental level, maturity and emotional resilience.

Here in South Africa and in other countries there are various psycho-educational and family therapy programmes that attempt to help severely alienated children of divorce rebuild the damaged relationship with the alienated parent. These programmes aim:

To initiate contact between the alienated parent and child
To provide psycho-educational training to the parents
To develop child-focused parental involvement
To re-establish reality and correct distorted perceptions of the self, both by the child and by the parents
To relieve the burden on the child and distance them from the conflict of loyalties between the parents
To rebuild the fractured emotional relationship by creating new shared experiences in a structured, safe and relaxed environment
To restore communication
To improve conflict management and family dynamics

Through these programmes children re-learn a healthy and balanced view of both parents and gradually renewed and happy parent-child relationships can develop. But it takes time. However hard it may be, the alienated parent must be patient.

Is this you?

Have you experienced parental alienation? Are you estranged from your child or is your contact with your child traumatic due to symptoms of parental alienation? Cape Town Divorce Attorneys, Simon Dippenaar & Associates Inc. is an established Cape Town family lawyer with extensive expertise in divorce and family law. We will ensure your legal rights are upheld and can link you to the appropriate support that will enable you to restore your relationship with your child.

Cape Town Attorneys and Lawyers, Simon Dippenaar & Associates Inc. has a reputation for empathy and professionalism, with a personal touch. We will listen to you and help you find a solution that is in the best interests of all parties – most importantly the child.

Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

Further reading:

REEVA STEENKAMP FOUNDATION ENDORSEMENT  “On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case. Family Law requires a very special person, just being a good lawyer is not enough.”

Apr 25, 2019

Cannabis law – what Sithole told the police

Parliament has amended legislation regarding dagga use and police officers have received instruction from the Police Commissioner

Dagga possession and cultivation - the law changes

We wrote last year about the Constitutional Court ruling regarding dagga, or cannabis. The ConCourt judgement effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. The definition of “in private” extends beyond one’s place of residence and includes public spaces, as long as the possession is in a private place, e.g. a pocket, and is discreet.

However, a court judgement, even by the highest court in the land, is not in itself legislation. It was necessary for Parliament to amend legislation before the law could officially be declared changed in response to the ruling. In the interim, police were in the arguably awkward position of having to use their judgement and discretion when faced with circumstances of cannabis possession.

National Prosecuting Authority issues guidelines

Parliament has acted swiftly to change the relevant legislation concerning cannabis and the National Prosecuting Authority (NPA) has issued guidelines to prosecutors to ensure criminal procedure reflects the amended laws. These guidelines have also been delivered to the South African Police Service (SAPS) by Police Commissioner General Khehla Sithole. If you use dagga there are important things you should know.

Cannabis law rewritten

The two primary pieces of legislation concerning cannabis law are the Drugs and Drug Trafficking Act 1992 and the Medicines and Related Substances Control Act 1965. Both have been officially amended to reflect the Constitutional Court judgement. Other legislation, i.e. the Children’s Act 2005, the Child Justice Act 2008 and the National Road Traffic Act 1996, has also been impacted in a lesser way. The Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act now specifically allow for the possession and cultivation of cannabis for private use. Personal consumption of dagga has been decriminalised.

Still an offence…

It is very important to note that dealing in cannabis is still a criminal offence, as is the use of cannabis by children or in the presence of children. Furthermore, driving under the influence of dagga contravenes the National Road Traffic Act, which prohibits “driving under the influence of a drug which has a narcotic effect”.

Smoking cannabis in public is not permitted – it is only the possession and not the use of the substance that is allowed in public, provided it is in a private space (pocket, bag, vehicle). So smoking in the street, in bars or at a rock concert is still an offence.

Determining private use

Because “private use” can take place outside the home, police officers must still rely on their judgement when they find someone in possession of cannabis. The legislation has not specified a quantity that defines private consumption or, conversely, one that constitutes dealing in the substance. Police officers must use discretion in deciding if the amount possessed is for personal consumption or not, and must furthermore ask a series of appropriate questions to satisfy themselves on the matter.

If the police officer is satisfied that the cannabis is for private consumption, then no arrest may be made and the substance may not be seized. If there is any doubt as to the intention to use the cannabis privately, the officer must not make an arrest but must rather open a docket and bring the individual to court by means of summons.

Cannabis law summarised

In summary, here’s what the amended legislation has decriminalised…and still prohibits:

✔

Adults may use or possess cannabis in private for personal consumption
Adults may cultivate cannabis in a private place for personal consumption
Private use is not confined to a home or private dwelling
No quantity has been prescribed as constituting private use

✖

Possession or use by a child (under age 18) is still prohibited
Use of cannabis around a child is prohibited
Dealing in cannabis is prohibited and is still a serious criminal offence
Cannabis use “not in private” is an offence

Police are accorded a large amount of discretion, which may lead to inconsistencies in implementation. Where there is a clear indication that the cannabis does not qualify as personal consumption (which the guidelines define as “large quantities” and/or an “unsatisfactory explanation”), then normal police procedure must be followed. This includes seizure of the cannabis and the registering of criminal charges and may or may not include arrest, depending on circumstances (e.g. if the suspect poses a flight risk). How these guidelines may be interpreted by different police stations or officers remains to be seen.

Legal advice is still a good idea

The amendments to cannabis use legislation are fresh and the police directive has only recently been issued. It is reasonable to expect police officers to require a period of adjustment. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146 or +27 76 116 0623.

Apr 25, 2019

Just and equitable evictions in South Africa?

“Justice? — You get justice in the next world. In this one you have the law.”

This is a proverb by the American novelist, William Gaddis, which unfortunately many times seems to be so fitting. This is especially so in eviction matters.

Eviction Attorneys Cape Town SD Law

Just recently, I had the sad experience of seeing my client’s hopes dashed once again because of the law being manipulated to the degree that it caused severe injustice.

My client bought a house that had been repossessed.

Now, that’s the first issue. Anyone looking to buy a repossessed house because it seems like a real bargain needs to be very careful, and should get good legal advice beforehand.

Tragically, my client’s daughter was killed by a taxi right in front of their home. She could not bear to live in that house with those terrible and vivid images, so she went to live with friends and immediately bought another house for herself and her other daughter.

The new house was to be a new start, but it turned out not to be the new start she’d envisaged.

It turns out that the house had an illegal occupant who was no novice at eviction matters. She has been living there for years, making a fairly good living from her home business, and managing to get the previous two purchasers to throw in the towel and to sell the property on. (Of course, the bank was home dry.)

Eviction law is meant to protect the vulnerable from being illegally evicted, but it can turn and bite the innocent and vulnerable home-owner and cause injustice.

The illegal occupant simply ignored all the papers that we served on her, and pitched up at court to ask for an extension, which she was granted. Under ordinary circumstances, she shouldn’t have been granted an extension, but housing is such an important issue, and is a right protected by the Constitution, that usually these requests are granted.

The law bends backwards to ensure that an occupant’s rights are not trampled underfoot, as was the case in pre-Apartheid SA.

Then the illegal occupant found an attorney to help her. The problem is that the attorney, while comfortably working within the law, has managed to cause numerous delays, has raised spurious defences, obtained postponements, and has racked up legal costs in the process.

These “tactics” can be absolutely soul destroying to those who are merely seeking justice. It ends up becoming a sort of attrition of their will to fight, their financial resources, and pushes them to simply throw in the towel. The result is that, while the law seeks to prevent injustice to the occupant, it often strips home-owners of their rights to housing in the process.

This is one of the imbalances in the law of eviction. My quest is to counter unethical delay tactics, and to ensure that justice is worked back into the law for the home-owner that is often left in the cold.

by Simon Dippenaar

Simon Dippenaar & Associates Inc. is a law firm in Cape Town, Johannesburg, and Durban of specialised attorneys, including eviction attorneys assisting both landlords and tenants with the eviction process over residential, commercial or farm land. Contact us on +27 (0) 86 099 5146 or sdippenaar@sdlaw.co.za.

Parental Alienation

What is it and how can it be prevented?

Parental alienation is a sad by-product of divorce or other breakdown between parents. Unfortunately, it is usually the result of deliberate sabotage by one parent against the other. It is very rarely an organic response by the child, provided there is no physical or emotional abuse present. According to clinical psychologist, Dr Marilé Viljoen, “Parental alienation is a set of processes and behaviours conducted and enacted by a parent to deliberately and knowingly damage or sever the relationship between a child and another parent with whom the child enjoyed a prior loving relationship.” A child may express “disapproval and even hatred toward a parent they loved and respected before the separation or divorce”.

Parental Alienation Syndrome (PAS)

Strictly speaking, there is a distinction between Parental Alienation Syndrome (PAS) and simple parental alienation. However, the difference is one of degree. For the purposes of understanding the concept, we will use the term ‘parental alienation’ to refer to all types of alienation between a parent and child in the context of separating parents.

Estrangement vs. parental alienation

It is important to differentiate between estrangement and alienation. While estrangement is sad and all too common, it does not arise from the same vindictive motives as parental alienation. Estrangement refers to the breakdown of the relationship between a parent and child, which may come about because of the parent’s:

Poor treatment of the child
Abuse or neglect of the child
Poor parenting behaviour
Low insight into parenting behaviour
Inability to understand the child’s world or to place themselves in the child’s shoes
The struggle to take responsibility for their own emotions and behaviour

Some of these factors can be blamed on the parent; some are unconscious behaviours. None is driven by the other parent, as is the case with parental alienation.

Pre-divorce

Although we talk about parental alienation as a consequence of divorce, the roots of it can often be found in the family dynamics before the marriage ends. It can be argued that the dying days of a relationship, when the couple still inhabits a common home, can be more damaging to a child than the divorce itself. Where children are used as emotional bargaining tools they are often manipulated into a situation where they side with one parent or the other. When the relationship between the parents is resolved, even via divorce, children are often relieved of the triangulation and harmonious relations with both parents can be restored.

What does parental alienation look like?

Parental alienation can mild, moderate or severe. At its most extreme it can include irrational fears and paranoia. Whatever the degree of parental alienation, it is usually characterised by some or all of the following:

Denigration and hatred of the targeted parent. The child cannot recall or denies any positive past experiences and wants no contact with the once-loved parent. This rejection can happen very suddenly.
Weak or ridiculous rationalisation for intense hostility. If the child is asked the reason for rejection, the explanation often seems innocuous, the behaviour out of proportion to the motive for it.
Lack of usual ambivalence about the targeted parent. In other words, children with healthy parental relationships normally display mixed feelings towards their parents. With parental alienation, one parent is perfect and the other is irrevocably flawed.
Assertion by an adamant child that the decision to reject the other parent is theirs alone, despite the obvious influence of one parent on the child’s thinking.
Reflexive support of the favoured parent in the conflict. This means that the alienated parent has no ability to influence the child at all. The child will blindly support the favoured parent.
Lack of guilt over the treatment of the alienated parent. The child may be rude, ungrateful, spiteful and cold toward the alienated parent and displays no empathy at all.
Use of borrowed scenarios and phrases from the alienating parent. The child may make accusations that are beyond their understanding or level of literacy.
The mistreatment of the alienated parent may extend to rejection of the extended family or even friends of that parent.

The impact of parental alienation on the divorce process

Statistics from the UK cite parental alienation as the main factor in approximately 80% of the most difficult cases that come before the family courts. Here in South Africa, these cases are the most challenging for family lawyers to deal with.

Parental alienation is no less than child abuse. According to Anthony Douglas, CEO of the Children and Family Court Advisory and Support Service in the UK (Cafcass), the deliberate manipulation of a child by one parent against the other is a common feature of family breakdowns and should be treated as neglect or abuse and not accepted as an inevitable consequence of divorce.

Are you the victim of parental alienation?

Cape Town Law firm Simon Dippenaar & Associates Inc. has extensive expertise in divorce and family law. If you are alienated from your child as a result of an acrimonious divorce, we can help you draw up a parenting plan that will gradually and sensitively enable you to restore your relationship with your child. We can arrange for the services of a mediator or child psychologist if required. We know that a child cannot be forced to revive love for a parent when love and respect have been undermined. It is a slow and delicate process. But we can work towards a form of reconciliation with the other parent that will hopefully remove the alienating influence.

Cape Town Divorce Attorneys, Simon Dippenaar & Associates Inc. has a reputation for empathy and professionalism, with a personal touch. We will listen to you and help you find a solution that is in the best interests of all parties – most importantly the child.

Call one of our Cape Town family lawyer on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

Source: DivorceAttorneyCapeTown.co.za

Further reading:

Apr 5, 2019

Commercial evictions: how a landlord can evict a tenant

PIE does not apply to commercial evictions, but CPA might

Legislation introduced in the last few years gives residential tenants a host of rights, and landowners or landlords must follow very strict procedures to evict tenants. However, the same is not true of commercial tenants. In some case the Consumer Protection Act (CPA) may apply, but if not, the relationship is governed by contract law.

Landlord and commercial tenant relationship

South African contract law is derived from the Roman-Dutch law of contract. A contract is defined as an agreement between two or more parties binding them in a legal commitment. It is basically a legal framework that enables individuals or juristic persons (in other words, companies or organisations) to engage in business. They can exchange resources – such as money or their time – in the knowledge that they are protected by a legal agreement that is – or should be – fair to both parties. If one party reneges on their obligations, the other party is safeguarded by law from loss or the consequences of unlawful behaviour.

A commercial lease is a form of contract. It outlines the interests of both landlord and tenant and their duties towards each other. Properly drafted, it should facilitate a harmonious relationship between the two. Unlike residential tenancies, there is no legislation specifically governing commercial leases, so a professionally prepared, written lease is essential for avoiding misunderstanding and disputes. It is the contract as defined above.

Commercial rental is normally charged per square metre, rather than a flat rate for the premises. On top of that, there is usually a cost for the landlord’s operating costs, parking, rates and taxes, body corporate levies and insurance as well as charges based on use for electricity, water, refuse collection and sewerage. These should all be specified in the lease.

Selling the lease

If a tenant moves out without notifying the landlord and sells the lease to a new business, the new tenant is an illegal occupier. A lease is a contract between two named individuals or juristic persons. A lease can be sold, but the contract with the property owner must then be renegotiated and a new lease drawn up. Whether or not this can be done will also depend on the stipulations in the original lease.

Definition of a commercial tenant

Whether or not a tenant is considered commercial is not based on the zoning of the building but on the use of it. So someone who resides in a commercial property is considered a residential tenant and is protected by PIE. By contrast, a commercial occupant is someone who “…does not use buildings and structures as a form of dwelling or shelter”. The commercial occupant could be an organisation or an individual, and the building could be a residential structure. For example, a homeowner may let a cottage on their property to a self-employed consultant to use as an office. Although the cottage is part of a residential holding, the consultant is a commercial tenant because of the way the cottage is used.

Cancellation of a commercial lease

While commercial tenants do not enjoy the level of protection afforded residential tenants by PIE, the landlord must still follow due process. If a landlord wishes to evict a tenant, they must first cancel the lease. This can be done on expiry of the lease or on the occasion of a material breach of the terms of the agreement (usually rent arrears).

Consumer Protection Act

In some instances a commercial tenant may be protected by the Consumer Protection Act (CPA). If there is a fixed term lease, Section 14 of the CPA applies. In this scenario the landlord must give 20 business days’ written notice of a breach of the lease agreement. They may then only cancel the lease if the tenant fails to rectify the breach within the 20 days.

Section 14 does not apply in the following situations:

If the tenant is an organ of State (municipality, state department etc.)
If the landlord and tenant are both juristic persons
Once-off leases
If the tenant is a juristic person with an income/turnover above R2 million per year

In these circumstances 20 business days’ notice of a breach is not required before being able to cancel the lease.

Eviction process for a commercial tenant

Commercial evictions are handled either by the High Court or the Magistrate’s Court. The case is brought by way of action or application proceedings in the High Court and by way of action proceedings in the Magistrate’s Court. The choice of court is usually determined by the lease agreement, with the jurisdiction of the Magistrate’s Court the most common. The lease agreement must first be cancelled, as discussed above, before an eviction proceeding can be brought.

Generally, commercial evictions are effected speedily. The issues surrounding residential evictions – the rights of the occupier to a dwelling and the wellbeing of vulnerable individuals – are not at stake. By contrast, in the business context the rights of the property owner to protect commercial income take priority. But this highlights the need for a rock-solid lease to be in place. This provides the legal framework within which the eviction can take place.

Commercial evictions do not only involve the removal of the tenant. Landlords have a right to claim any damages that may apply at the time of eviction, as well as rent arrears.

Who can evict?

It is worth noting that in a commercial eviction the official landlord may not necessarily be the property owner. Commercial property is often owned by a juristic person such as a large corporation or a pension fund. Therefore an agent can act as applicant in an eviction case, as long as they can prove they have the right to appear in court on behalf of the owner (this is known in law as “locus standi”).

Landlord’s hypothec – the right to repossess tenant’s equipment

A commercial tenant does not have the same attachment to a property as a residential tenant. They still have somewhere to sleep at night, and it is not that difficult to find an alternative location for a business. For that reason, there is a greater risk that a commercial tenant might abscond when the notice to quit is served. Rather than pay the outstanding rent, the tenant might just take their moveable property and run. After all, they are not losing their home.

If a landlord is concerned that the commercial tenant might do a midnight flit, an urgent application can be brought before the Court to allow the landlord to attach and secure the movable goods on the property. If the tenant then removes them it is a criminal offence.

The security a landlord holds over a tenant’s property is known as the hypothec and is actually the strongest form of security in South African law. However, once the movable goods are removed from the property the landlord has no security over or rights to those goods. Therefore if there is reason to suspect a tenant might beat a hasty retreat, the landlord must apply for the attachment of the goods urgently. This is best done with the help of an experienced Cape Town Eviction Attorney.

Business rescue

Occasionally a landlord might not be able to commence the eviction process, even if the tenant is in breach of the lease. A business that has fallen on hard times may enter Business Rescue. This is a process that allows a business in financial distress time for rehabilitation. During this period there is a moratorium on all legal action, so an eviction notice may not be served.

What happens if the premises are sold?

There is a principle in South African law, derived from Roman-Dutch law, called “huur gaat voor koop“, which translates as “only the lease and nothing more”. What this means for the tenant is that, in the event of a sale of the building leased by the tenant, the purchaser is obliged to honour the lease agreement. The tenant may continue to occupy the building, or their part of it, according to the terms of the lease. The tenant’s rights in this situation are stronger than the right of ownership. However, the tenant should be alert to the fact that the new owner may not wish to renew the lease, depending on their plans for the property. So a wise tenant will be on the look-out for new premises well in advance of their lease expiry.

Professional help is essential

Whether you are a commercial tenant or landlord, it’s important to have a carefully drafted lease that includes all your requirements and conditions. If both parties know exactly who is responsible for what, conflict is less likely to occur. This includes the terms of renewal, which are often left open-ended in commercial leases and can be a cause for dispute as the end of the lease period draws near. Cape Town Eviction Attorneys, Simon Dippenaar & Associates, Inc. in Cape Town law firm of evictions specialists with extensive experience in property law (now serving Gauteng and Kwazulu Natal). They can ensure your lease is a sound business contract that will protect you, landlord or tenant. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Request a commercial lease agreement template

Arbitration Clause in Sale Agreements

Case summary topic: Arbitration clause in sale agreements

Seabeach Property Investment No 28 v Candice Lauren Nunn Case no.: 18310/18 In the High Court of South Africa, Western Cape Division

By Cape Town Attorneys, Simon Dippenaar & Associates Inc. (aka SDLAW South Africa)*

The Applicant sought an order that the dispute that arose between the parties had validly and properly been referred to arbitration. In the alternative, the Applicant sought an order that the dispute was arbitrable and should accordingly be referred to arbitration by the Court.

An arbitration clause may or may not be binding on parties if the contract is void from the beginning. This case discusses when it is binding. Read more.

The Respondent insisted that only a Court could resolve the dispute. The Respondent argued that the written agreement entered into between the parties was void ab initio due to a fundamental mistake that was brought about by the Applicant’s estate agents, which rendered the whole agreement (including the arbitration clause), null and void.

On 28 February 2018, the parties concluded a written agreement of sale in respect of a flat situated in Sea Point, which included two parking bays and a roof terrace as exclusive use areas. The property (aside from the parking bays) consisted of two levels and a roof terrace totalling 616 square meters.

The Respondent said that, at the time of signing, she was led by the Applicant’s estate agent to believe that the property was 616 square meters and that she would acquire full ownership of both the lower and upper level. The Respondent claimed that she only became aware of the fact that the roof terrace was owned by the body corporate after signing the agreement, which meant that she wouldn’t acquire ownership thereof.

The Respondent signed the cover page of the agreement which contained a table that set out the exclusive use area and she initaled next to it. However, she stated that even if she had read it, she would not have understood the meaning of it. The Respondent verily believed, as a result of the estate agent’s misrepresentation, that she would become the owner of the rooftop terrace.

The Applicant’s estate agents denied that the sale agreement was void, in light of the correspondence that was exchanged between the parties.

In Heyman v Darwin’s Ltd, the Court held that: “The question whether a dispute comes within the provisions of an arbitration clause or not primarily depends upon the terms of the clause itself.”

In the present instance, the clause provided that: “(A)ny dispute between the parties in connection with or arising out of … the formation, implementation, validity, enforceability and rectification of the Agreement, shall be referred to and determined by Arbitration.”

The Applicant argued that it was clearly intended that all disputes regarding the question whether the agreement was void or merely voidable should be determined by an arbitrator. The Respondent argued that, due to her fundamental mistake, the entire contract between the parties should be regarded as void ab initio, which would result in all of its clauses, including the arbitration clause, falling with it.

The Court found that the argument that if a contract is void from the outset, all clauses including the arbitration clause will be void from inception, was misguided. It was further held that “a Court must ascertain what the parties intended by having regard to the purpose of their agreement, and interpret it contextually so as to give it a commercially sensible meaning.”

The ultimate question for consideration was whether the parties intended disputes to be determined by an arbitrator. If so, he or she should then determine whether the contract was valid and enforceable or voidable or void.

The Court found that, having regard to the agreement as a whole, together with the arbitration clause, it was evident that the parties envisaged and intended, when signing the agreement, that all of their disputes regarding the agreement, whether void or voidable, would be determined by an arbitrator.

Further, a clause in the agreement specifically stated that “despite the termination of or invalidity for any reason of this Agreement of any part thereof” the arbitration clause would remain in effect. The Court found that the arbitration clause, in effect, constituted a separate self-standing agreement and that the parties intended to isolate and ring-fence their agreement to go to arbitration.

Therefore, even if the remaining part of the agreement was to be found void or voidable, the parties agreed that it would not affect the validity and enforceability of the arbitration clause.

The Court concluded that the Applicant correctly referred the clause to arbitration and that the dispute is, in fact, arbitrable in terms of the agreement.

*Cape Town Lawyers, Simon Dippenaar & Associates Inc. is a Cape Town law firm (now serving clients in Gauteng and Kwazulu Natal). Contact us on +27 (0) 86 099 5146 or sdippenaar@sdlaw.co.za.

Mar 21, 2019

Criminal record? Wipe it clean

Make a fresh start

Expungement of criminal record

If you have a criminal record, no matter how minor the offence, your chances of getting a job are slim. But there is good news. If it’s been 10 years or more since the conviction, you can apply to have your criminal record wiped clean. This is known as “expungement”.

What is expungement of a criminal record?

Expungement of a criminal record is a legal process through which you can apply to the Department of Justice to remove any record of previous minor criminal offences from the criminal record database of the South African Police Service (SAPS).

This process came into effect in 2009 as a result of changes to the Criminal Procedure Act, 1977 (Act 51 of 1997) which made it easier for people to clear their name of a minor offence so that the past was no longer an obstacle to future employment opportunities. The Act was also designed to assist anyone convicted of apartheid era crimes.

Note that expungement of criminal records differs from restorative justice.

Are you eligible to have your criminal record wiped clean?

According to Section 217B(1) of the Criminal Procedure Act, you can apply to have your criminal record expunged if:

It has been 10 years since the date of your conviction (if you were 18 or younger when you were convicted you can apply after five years).
It was a minor offence, such as petty theft or shoplifting.
You were not convicted of any other offence and were given the option of a fine rather than imprisonment.
You were told that by paying a fine you would not receive a criminal record and you’ve subsequently discovered that you indeed have a record.
You were fined less than R20 000.
You received a suspended sentence.
Your name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

You do not qualify for expungement if:

It has not been 10 years since the conviction.
Your name is either listed in or has not been removed from the National Register for Sex Offenders or the National Child Protection Register.
You were sentenced to prison without the option of a fine.
You received a fine of more than R20 000.
You were convicted of a serious crime such as murder, rape other sexual offences, or violent crimes.

Getting the ball rolling – steps in the expungement process

First obtain a clearance certificate from the Criminal Record Centre of the SAPS proving that 10 years has elapsed since your conviction. This certificate must be attached to your application.
Complete the expungement application forms (Part II and Part III) and, together with the clearance certificate, post or hand deliver them to the Department of Justice and Constitutional Development in Pretoria.
If you meet the requirements set out in section 271B(1) of the Act, you will be notified in writing that your application was successful and that your crime has been expunged. You will likewise receive written notification if your application is denied together with the reasons for this decision. The process usually takes about three months.

The employment landscape

One of the biggest challenges facing South Africa is high unemployment, coupled with widespread poverty, high inequality and poor economic growth. The country’s official unemployment rate for job-seekers is 27.2% (Stats SA), but if we accept the broad definition, which includes those who have given up trying to find a job, the true level of unemployment is probably closer to 50%.

Finding a job is hard enough without the added barrier of a criminal record. Since more and more employers are running background checks on potential employees and are entitled to refuse or terminate employment because of a previous crime, even a minor one, it makes sense to apply for expungement. Any future background checks will not reflect prior convictions.

Given the gloomy landscape, job seekers must be able to “put their best foot forward”. Don’t let a past mistake determine your future.

Let our law firm help you

Cape Town Attorneys, SD Law & Associates Inc. are criminal attorneys and bail lawyers. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za