A new High Court decision highlights once again the need to have your building
plans approved before you build.
The saga starts...
This story begins way back in 2004, with the owner of a rural Guest House starting work on a new double-storey conference centre and four self-catering apartments - without getting plans approved, and without applying for rezoning from "Agricultural" to "Resort" (rezoning being required before plans could be considered for approval).
There followed a long saga of notices to cease work being ignored, delays around an environmental impact assessment, and rejection of an application for rezoning both by the DEA (Department of Environmental Affairs) and on appeal to the Minister.
Ultimately the local municipality, whose building inspector had initially discovered the unlawful building activity at foundation stage, applied to Court for an order interdicting the Guest House from occupying or using the new buildings (plus four more apartments built unlawfully in 2007).
... and ends badly for the owner
The Court granted the interdict (and refused to suspend it) leaving the Guest House owner, after incurring no doubt very substantial cost in erecting the buildings over a nine year period -
Unable to use in any way its new buildings unless and until its new rezoning application is granted and the building plans passed, and
Worse, facing no doubt an application by the municipality for a full demolition order if and when the rezoning application and/or the building plans are rejected.
NEW RULES - WHO REPORTS YOUR INCOME TO THE TAXMAN?
"Third party reporting enables income tax returns to be pre-populated and helps SARS to verify accuracy of taxpayers' disclosures." (SARS)
Be aware that SARS has a new information stream which it will use to cross-reference to information you supply, to pre-populate your tax returns, and (presumably) to check generally for compliance and for completeness of taxpayer registration.
A new Tax Administration Act Notice requires automatic bi-annual returns from banks, JSE listed companies, medical schemes and a variety of other persons and institutions in respect of a wide range of transactions, contributions and pay-outs including those relating to RAs, life policies, medical aid schemes and royalties.
Estate agents, attorneys included
Returns are similarly required from estate agents and attorneys who pay to you, or receive on your behalf "any amount in respect of an investment, interest or the rental of property".
WORKPLACE DISCRIMINATION: LESSONS FROM THE DREADLOCK DISMISSALS CASE
Employers: Be aware of the wide ramifications of the recent "Dreadlocked Warders" decision by the Supreme Court of Appeal.
Briefly, the Court ordered the reinstatement of prison warders dismissed for refusing to cut off their dreadlocks when ordered to do so in terms of the Correctional Services Dress Code applicable to them. The Court accepted that the Rastafari and Xhosa officers in question had worn their dreadlocks "as a ritual in observance of their sincerely held religious and cultural beliefs".
Finding that "a policy is not justified if it restricts a practice of religious belief - and by necessary extension, a cultural belief - that does not affect an employee's ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense", the Court held their dismissals to have been discriminatory and automatically unfair.
The decision shows how vital it is to ensure that your workplace practices, contracts, codes etc comply strictly with our labour legislation and do not deny employees their constitutional rights.
Tread carefully here - the Labour Relations Act (LRA) renders automatically unfair any discrimination, direct or indirect, "on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility."
And critically, once such discrimination is established, unfairness is presumed, and the onus then shifts to the employer to prove to the contrary.
Employees: Our courts have again confirmed their commitment to stamping out unfair discrimination in all its forms from the workplace. Stand up for your rights!
PLAGUED BY A STALKER? HARASSED? FIGHT BACK!
If you or your family are being harassed or stalked in any way, the new 'Protection from Harassment Act' has just handed you a new remedy. The Act promises quick, easy and affordable protection for your rights via an application to your local magistrates court for a "protection order" requiring the harasser to stop his/her unlawful behaviour immediately.
The Act has teeth - a harasser who breaches a protection order faces immediate arrest and prosecution (with a penalty of a fine or up to 5 years' imprisonment).
"Harassment" in this context is widely defined and can take many forms, both physical and electronic. It encompasses stalking, cyber-stalking, sexual harassment (itself widely defined), physical communication (the sending of letters or parcels etc) and electronic communication - in fact any unreasonable conduct that causes or inspires the fear of harm (mental, psychological, physical or economic). Note that the "reasonableness" or otherwise of the conduct is key here, the court being specifically required to consider whether conduct may relate to lawful pursuits like crime-fighting etc.
Cyber-stalking - no place to hide
And if you can't identify your harasser, the police can investigate, trace and identify him/her for you. Nor can the perpetrator hide behind anonymous emails, SMSes, faxes etc - electronic communications service providers can be ordered to disclose the originator's names, identity details and addresses.
PAYING TAX BY CHEQUE - THINK TWICE!
Of course you must pay SARS its dues, but think twice before doing so by cheque. A recent High Court case illustrates the danger.
The facts
A taxpayer owed SARS R432,375-34 for VAT
It drew a post-dated cheque, crossed and marked "not transferable" in favour of SARS for the amount due
It hand delivered this cheque to the local SARS branch office and a receptionist there signed for it in the branch's "delivery record"
The cheque was never deposited by SARS. Instead, apparently as part of a scam prevalent at the time, it was "probably stolen by a person unknown" and then cloned, with the payee changed from "SARS" to a third party which was duly paid out by the collecting bank
As SARS hadn't deposited the cheque, the taxpayer still owed it the VAT due
To avoid penalties and interest, and in order to get a tax clearance certificate, the taxpayer made out a second cheque to SARS, and this time SARS received payment
Down now by the "duplicated payment" of R432,375-34, the taxpayer sued SARS on the basis of an old Roman law remedy designed to ensure that no one is unjustifiably enriched at the expense of another. In the alternative it alleged that SARS owed it a "duty of care" and had acted negligently and wrongfully in regard to the manner in which it dealt with the first cheque delivered to its offices.
The finding
The Court dismissed the taxpayer's claim, finding that SARS had not been enriched, that the taxpayer had made the second payment in terms of a legal obligation to do so, and that the alternative claim fell away when SARS became "the true owner" of the first cheque. There are indications in the judgment that the taxpayer could possibly have considered other remedies against SARS and/or a claim for negligence against the paying bank, but the point remains - pay your tax via cheque at your peril!
THE JUNE WEBSITE: STAY SAFE FROM PHISHING FRAUD!
"Knowledge is power" (Sir Francis Bacon)
As online phishing fraud reaches epidemic proportions, the scams are becoming more and more sophisticated. They almost seem to be evolving in a sort of "arms race" with the banks.
Our best defence? Knowledge. We have to educate ourselves about how the scams work, what to look out for, what to do and what not to do.
A good place to start is Fin 24's "Spotting Bank Scamsters" at http://www.fin24.com/Money/Banking/Spotting-bank-scamsters-20130424. The article dissects and analyses two typical phishing emails and lists common telltale signs.
The heart of it though is Sabric and Hill's "Safety Tips" at the end of the article. Protect yourself - keep a printout handy, and follow each and every suggestion without fail at all times.
Have a Great June (and Stay Safe Online!)
plans approved before you build.
The saga starts...
This story begins way back in 2004, with the owner of a rural Guest House starting work on a new double-storey conference centre and four self-catering apartments - without getting plans approved, and without applying for rezoning from "Agricultural" to "Resort" (rezoning being required before plans could be considered for approval).
There followed a long saga of notices to cease work being ignored, delays around an environmental impact assessment, and rejection of an application for rezoning both by the DEA (Department of Environmental Affairs) and on appeal to the Minister.
Ultimately the local municipality, whose building inspector had initially discovered the unlawful building activity at foundation stage, applied to Court for an order interdicting the Guest House from occupying or using the new buildings (plus four more apartments built unlawfully in 2007).
... and ends badly for the owner
The Court granted the interdict (and refused to suspend it) leaving the Guest House owner, after incurring no doubt very substantial cost in erecting the buildings over a nine year period -
Unable to use in any way its new buildings unless and until its new rezoning application is granted and the building plans passed, and
Worse, facing no doubt an application by the municipality for a full demolition order if and when the rezoning application and/or the building plans are rejected.
NEW RULES - WHO REPORTS YOUR INCOME TO THE TAXMAN?
"Third party reporting enables income tax returns to be pre-populated and helps SARS to verify accuracy of taxpayers' disclosures." (SARS)
Be aware that SARS has a new information stream which it will use to cross-reference to information you supply, to pre-populate your tax returns, and (presumably) to check generally for compliance and for completeness of taxpayer registration.
A new Tax Administration Act Notice requires automatic bi-annual returns from banks, JSE listed companies, medical schemes and a variety of other persons and institutions in respect of a wide range of transactions, contributions and pay-outs including those relating to RAs, life policies, medical aid schemes and royalties.
Estate agents, attorneys included
Returns are similarly required from estate agents and attorneys who pay to you, or receive on your behalf "any amount in respect of an investment, interest or the rental of property".
WORKPLACE DISCRIMINATION: LESSONS FROM THE DREADLOCK DISMISSALS CASE
Employers: Be aware of the wide ramifications of the recent "Dreadlocked Warders" decision by the Supreme Court of Appeal.
Briefly, the Court ordered the reinstatement of prison warders dismissed for refusing to cut off their dreadlocks when ordered to do so in terms of the Correctional Services Dress Code applicable to them. The Court accepted that the Rastafari and Xhosa officers in question had worn their dreadlocks "as a ritual in observance of their sincerely held religious and cultural beliefs".
Finding that "a policy is not justified if it restricts a practice of religious belief - and by necessary extension, a cultural belief - that does not affect an employee's ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense", the Court held their dismissals to have been discriminatory and automatically unfair.
The decision shows how vital it is to ensure that your workplace practices, contracts, codes etc comply strictly with our labour legislation and do not deny employees their constitutional rights.
Tread carefully here - the Labour Relations Act (LRA) renders automatically unfair any discrimination, direct or indirect, "on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility."
And critically, once such discrimination is established, unfairness is presumed, and the onus then shifts to the employer to prove to the contrary.
Employees: Our courts have again confirmed their commitment to stamping out unfair discrimination in all its forms from the workplace. Stand up for your rights!
PLAGUED BY A STALKER? HARASSED? FIGHT BACK!
If you or your family are being harassed or stalked in any way, the new 'Protection from Harassment Act' has just handed you a new remedy. The Act promises quick, easy and affordable protection for your rights via an application to your local magistrates court for a "protection order" requiring the harasser to stop his/her unlawful behaviour immediately.
The Act has teeth - a harasser who breaches a protection order faces immediate arrest and prosecution (with a penalty of a fine or up to 5 years' imprisonment).
"Harassment" in this context is widely defined and can take many forms, both physical and electronic. It encompasses stalking, cyber-stalking, sexual harassment (itself widely defined), physical communication (the sending of letters or parcels etc) and electronic communication - in fact any unreasonable conduct that causes or inspires the fear of harm (mental, psychological, physical or economic). Note that the "reasonableness" or otherwise of the conduct is key here, the court being specifically required to consider whether conduct may relate to lawful pursuits like crime-fighting etc.
Cyber-stalking - no place to hide
And if you can't identify your harasser, the police can investigate, trace and identify him/her for you. Nor can the perpetrator hide behind anonymous emails, SMSes, faxes etc - electronic communications service providers can be ordered to disclose the originator's names, identity details and addresses.
PAYING TAX BY CHEQUE - THINK TWICE!
Of course you must pay SARS its dues, but think twice before doing so by cheque. A recent High Court case illustrates the danger.
The facts
A taxpayer owed SARS R432,375-34 for VAT
It drew a post-dated cheque, crossed and marked "not transferable" in favour of SARS for the amount due
It hand delivered this cheque to the local SARS branch office and a receptionist there signed for it in the branch's "delivery record"
The cheque was never deposited by SARS. Instead, apparently as part of a scam prevalent at the time, it was "probably stolen by a person unknown" and then cloned, with the payee changed from "SARS" to a third party which was duly paid out by the collecting bank
As SARS hadn't deposited the cheque, the taxpayer still owed it the VAT due
To avoid penalties and interest, and in order to get a tax clearance certificate, the taxpayer made out a second cheque to SARS, and this time SARS received payment
Down now by the "duplicated payment" of R432,375-34, the taxpayer sued SARS on the basis of an old Roman law remedy designed to ensure that no one is unjustifiably enriched at the expense of another. In the alternative it alleged that SARS owed it a "duty of care" and had acted negligently and wrongfully in regard to the manner in which it dealt with the first cheque delivered to its offices.
The finding
The Court dismissed the taxpayer's claim, finding that SARS had not been enriched, that the taxpayer had made the second payment in terms of a legal obligation to do so, and that the alternative claim fell away when SARS became "the true owner" of the first cheque. There are indications in the judgment that the taxpayer could possibly have considered other remedies against SARS and/or a claim for negligence against the paying bank, but the point remains - pay your tax via cheque at your peril!
THE JUNE WEBSITE: STAY SAFE FROM PHISHING FRAUD!
"Knowledge is power" (Sir Francis Bacon)
As online phishing fraud reaches epidemic proportions, the scams are becoming more and more sophisticated. They almost seem to be evolving in a sort of "arms race" with the banks.
Our best defence? Knowledge. We have to educate ourselves about how the scams work, what to look out for, what to do and what not to do.
A good place to start is Fin 24's "Spotting Bank Scamsters" at http://www.fin24.com/Money/Banking/Spotting-bank-scamsters-20130424. The article dissects and analyses two typical phishing emails and lists common telltale signs.
The heart of it though is Sabric and Hill's "Safety Tips" at the end of the article. Protect yourself - keep a printout handy, and follow each and every suggestion without fail at all times.
Have a Great June (and Stay Safe Online!)
IN THIS ISSUE - JUNE 2013