THE DEVELOPER, THE UPMARKET GOLF ESTATE, AND THE “ADEQUATE”
CLUBHOUSE
"Golf is a game whose aim is to hit a very small ball into an even smaller hole, with weapons singularly ill-designed for the purpose” (Winston Churchill)
Whether you are a keen golfer or not (Churchill seems to have been in the latter camp), and whatever your reasons for buying property, always keep this in mind - you are bound by the written sale agreement. Consequently, never rely on any representations made to you unless they are written into the sale agreement – for almost a century, our law has been that a written contract is accepted as the sole evidence of what you have agreed: “The rule is that when a contract has once been reduced to writing, no evidence may be given of its terms except the document itself, nor may the contents of such document be contradicted, altered, added to or varied by oral evidence”.
Our courts have allowed very few exceptions to that basic principle, and a recent SCA (Supreme Court of Appeal) decision illustrates the dangers of disregarding it.
Promises, Promises
•On 10 March 2004 the buyers signed an agreement to purchase a property in an upmarket Golf Estate
•In the agreement of sale the developer had undertaken to, within a reasonable time, construct for the development “a
clubhouse built and furnished in accordance with the upmarket quality and nature of the proposed development”
•The agreement contained standard “non-variation” and “non-representation” clauses, making the agreement the sole
record of its terms and conditions
•A newsletter issued in November 2004 gave more detail on the proposed clubhouse, encapsulating an architect’s
specifications and design of how it was going to look
•However the developer, citing the adverse “financial and market conditions” prevailing at the time, only constructed
a ”temporary clubhouse”, saying it would construct another one only when it was “financially prudent and
economically viable to do so”. “We have”, said the developers when challenged, “already provided clubhouse facilities
which are adequate for the present needs of the development”
•The buyers, contending that this “temporary clubhouse” didn’t comply with the sale agreement (although they
conceded that it was in keeping with the “upmarket quality and nature” of the development), successfully sued the
developer in the High Court, which ordered the developer to build a clubhouse in compliance with the November 2004
newsletter
•On appeal however, the SCA held that the newsletter could not be relied on, since it was never signed by the
parties and was therefore never a term of the sale agreement
•Accordingly the newsletter could not be used to “amplify or lend content” to the “vague” clubhouse undertaking
given by the developer in the sale agreement
•The end result is that the buyers must make do with their “temporary clubhouse” – no doubt putting a bit of a
damper on their future 19th Hole get-togethers.
What counts is your written agreement – and it can’t be vague
Don’t rely on anything said to you – verbally or in writing – outside the written, signed sale agreement. And make sure that your agreement sets out clearly and unambiguously exactly what you are agreeing to – otherwise it could be held “void for vagueness” and unenforceable.
Most important of all, take advice before you sign anything!
THE TAX OMBUD’S OFFICE IS UP AND RUNNING – USE IT
The new Tax Ombudsman has set up office. Here’s what you need to know about how he can help you –
What the Ombud can do
•Resolve complaints against SARS relating to “service, procedural and administrative” matters – anything really
amounting to poor service
•Report “systemic and emerging” service issues to the Minister of Finance.
What the Ombud can’t do
•Resolve disputes about interpretation of tax laws, liability for tax or the amount of tax assessed
•Review anything already subject to processes for tax objection, appeal or court action (except for related
administrative issues)
•Review tax laws or policy (although he will report to the Minister on problems with the practical application of laws).
What you need to do
1. First, do not miss deadlines for any objections or appeals that may be necessary – this is vital, so take
advice immediately in doubt
2. Second, you can only approach the Ombud after first trying to resolve your complaint directly with SARS through its
internal complaints processes - follow the procedures set out on the SARS Service Monitoring Office
webpage http://www.sars.gov.za/Contact/How-Do-I/Pages/Raise-a-service-issue.aspx
3. All else failing, ask the Tax Ombud’s office to send you its “Guide for Complaints” plus a “Taxpayer Complaint Form”
(or a “Representative Complaint Form” for taxpayer representatives). Send an email to
[email protected], telephone 0800 662 837 or fax (012) 452 5013. The Ombud’s website, still at date of
writing under development, will hopefully provide more useful information and allow submission of documentation
online. A target of 15 business days has been set for response to (if not full resolution of) complaints.
Although the Ombud’s findings are recommendations to SARS rather than binding rulings, you now have access to a quick and inexpensive dispute resolution process if you run into a brick wall with SARS – take advantage of it.
YOUR MARRIAGE: WILL FOREIGN LAWS APPLY?
As pointed out in our November 2013 issue, a vital first step in planning your marriage is to choose which “marital regime” will apply to it (“in community of property”, “out of community of property with accrual” or “out of community of property without accrual”).
But there’s more. Another question is easily forgotten, namely what happens if either –
•You are getting married in another country, or
•One or both of you is not South African (or more correctly, is not “domiciled” in South Africa, your formal citizenship
not being the issue here – see below).
Which country’s laws apply? The answer can make a huge difference to you both - if South African law applies, you will be married in community of property unless you contract otherwise, whilst in other countries a whole host of different rules, requirements and regimes apply.
So whose law applies?
In a nutshell – the legal and property consequences of your marriage will, unless you expressly agree otherwise, be governed by the law of the country where the husband is domiciled at the time of the marriage (your “domicile” is broadly speaking your place of permanent residence, the country where you live and have “the intention to settle ….. for an indefinite period”).
Take advice!
There is much room for confusion here. Determining “domicile” involves a court trying to determine mental state or “intention” – never an exact science at the best of times. Moreover, the concept that only the domicile of the “husband” should count is outdated and unlikely to survive Constitutional scrutiny for gender equality, nor is it practical since it cannot be applicable to same-sex marriages.
So the only way to be really sure that both of you are protected from nasty surprises as to which laws, formalities and marital regimes will apply to you is to take advice before you marry.
A case study: Mauritian law and the wife who left with nothing
A recent Supreme Court of Appeal decision illustrates the potential for confusion -
•A couple married in Mauritius in 1983
•A month later they moved to South Africa, and the wife sued for divorce after 23 years of marriage here
•She claimed 50% of two properties acquired during the marriage
•The High Court, finding on the facts that the husband had been domiciled in South Africa at the time of the marriage
and that South African law therefore applied, granted the wife a 50% share in both properties based on the
Court’s conclusion that the couple had been married in community of property (the default marital regime here)
•The SCA however decided that the husband had been domiciled in Mauritius at the time of the marriage, Mauritian
law therefore applied, the wife had not proved any entitlement to a share in the properties as required by Mauritian
law, and her claim to a half share failed accordingly.
The wife must be regretting not having taken legal advice before her marriage.
STRIKE VIOLENCE – NEW BOOST FOR POLICE PROTECTION
Our Constitution guarantees the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
The new Dangerous Weapons Act will hopefully make it easier for the police to protect the public from any breach of the “peacefully and unarmed” requirement.
Anyone participating in a public gathering or demonstration is prohibited, on pain of up to 3 years’ imprisonment, from being in possession of any -
•Firearm,
•Imitation firearm,
•Object resembling and likely to be mistaken for a firearm,
•Airgun, or
•“Dangerous weapon” (defined as being any object other than a firearm capable of causing death or inflicting serious
bodily harm if used for an unlawful purpose).
Something that trade unions* in particular need to be aware of is their potential liability in this regard - the “convener” of the gathering, plus any marshals, are obliged to take “all reasonable steps” to ensure that these requirements are complied with. (* 24% of all employees belong to a trade union, the percentage rising to 78% in the mining and quarrying sector.)
These prohibitions do not apply to lawful activities by collectors and law enforcers, nor to participation in religious, cultural, sports, recreation or entertainment activities. Take specific advice if you aren’t sure whether you or your event fall into one of these categories.
BUDGET 2014: READ ALL ABOUT IT!
The Moneyweb website has a useful overview of the budget. Read more here:- http://www.moneyweb.co.za/moneyweb-home.
THE MARCH WEBSITE: ARE YOU USING ONE OF THESE PUTRID PASSWORDS?
With cyber criminals skulking in every corner of the Internet, you cannot afford to be using a weak password for any of your online activity.
Check your passwords against a list of 25 to be avoided like the plague, and get advice on creating strong ones, on Business Insider’s “Make Sure You Aren't Using One Of The 'Worst Passwords Of 2013'” at http://www.businessinsider.com/the-worst-passwords-of-2013-2014-
Have a Healthy, Happy and Successful 2014!
CLUBHOUSE
"Golf is a game whose aim is to hit a very small ball into an even smaller hole, with weapons singularly ill-designed for the purpose” (Winston Churchill)
Whether you are a keen golfer or not (Churchill seems to have been in the latter camp), and whatever your reasons for buying property, always keep this in mind - you are bound by the written sale agreement. Consequently, never rely on any representations made to you unless they are written into the sale agreement – for almost a century, our law has been that a written contract is accepted as the sole evidence of what you have agreed: “The rule is that when a contract has once been reduced to writing, no evidence may be given of its terms except the document itself, nor may the contents of such document be contradicted, altered, added to or varied by oral evidence”.
Our courts have allowed very few exceptions to that basic principle, and a recent SCA (Supreme Court of Appeal) decision illustrates the dangers of disregarding it.
Promises, Promises
•On 10 March 2004 the buyers signed an agreement to purchase a property in an upmarket Golf Estate
•In the agreement of sale the developer had undertaken to, within a reasonable time, construct for the development “a
clubhouse built and furnished in accordance with the upmarket quality and nature of the proposed development”
•The agreement contained standard “non-variation” and “non-representation” clauses, making the agreement the sole
record of its terms and conditions
•A newsletter issued in November 2004 gave more detail on the proposed clubhouse, encapsulating an architect’s
specifications and design of how it was going to look
•However the developer, citing the adverse “financial and market conditions” prevailing at the time, only constructed
a ”temporary clubhouse”, saying it would construct another one only when it was “financially prudent and
economically viable to do so”. “We have”, said the developers when challenged, “already provided clubhouse facilities
which are adequate for the present needs of the development”
•The buyers, contending that this “temporary clubhouse” didn’t comply with the sale agreement (although they
conceded that it was in keeping with the “upmarket quality and nature” of the development), successfully sued the
developer in the High Court, which ordered the developer to build a clubhouse in compliance with the November 2004
newsletter
•On appeal however, the SCA held that the newsletter could not be relied on, since it was never signed by the
parties and was therefore never a term of the sale agreement
•Accordingly the newsletter could not be used to “amplify or lend content” to the “vague” clubhouse undertaking
given by the developer in the sale agreement
•The end result is that the buyers must make do with their “temporary clubhouse” – no doubt putting a bit of a
damper on their future 19th Hole get-togethers.
What counts is your written agreement – and it can’t be vague
Don’t rely on anything said to you – verbally or in writing – outside the written, signed sale agreement. And make sure that your agreement sets out clearly and unambiguously exactly what you are agreeing to – otherwise it could be held “void for vagueness” and unenforceable.
Most important of all, take advice before you sign anything!
THE TAX OMBUD’S OFFICE IS UP AND RUNNING – USE IT
The new Tax Ombudsman has set up office. Here’s what you need to know about how he can help you –
What the Ombud can do
•Resolve complaints against SARS relating to “service, procedural and administrative” matters – anything really
amounting to poor service
•Report “systemic and emerging” service issues to the Minister of Finance.
What the Ombud can’t do
•Resolve disputes about interpretation of tax laws, liability for tax or the amount of tax assessed
•Review anything already subject to processes for tax objection, appeal or court action (except for related
administrative issues)
•Review tax laws or policy (although he will report to the Minister on problems with the practical application of laws).
What you need to do
1. First, do not miss deadlines for any objections or appeals that may be necessary – this is vital, so take
advice immediately in doubt
2. Second, you can only approach the Ombud after first trying to resolve your complaint directly with SARS through its
internal complaints processes - follow the procedures set out on the SARS Service Monitoring Office
webpage http://www.sars.gov.za/Contact/How-Do-I/Pages/Raise-a-service-issue.aspx
3. All else failing, ask the Tax Ombud’s office to send you its “Guide for Complaints” plus a “Taxpayer Complaint Form”
(or a “Representative Complaint Form” for taxpayer representatives). Send an email to
[email protected], telephone 0800 662 837 or fax (012) 452 5013. The Ombud’s website, still at date of
writing under development, will hopefully provide more useful information and allow submission of documentation
online. A target of 15 business days has been set for response to (if not full resolution of) complaints.
Although the Ombud’s findings are recommendations to SARS rather than binding rulings, you now have access to a quick and inexpensive dispute resolution process if you run into a brick wall with SARS – take advantage of it.
YOUR MARRIAGE: WILL FOREIGN LAWS APPLY?
As pointed out in our November 2013 issue, a vital first step in planning your marriage is to choose which “marital regime” will apply to it (“in community of property”, “out of community of property with accrual” or “out of community of property without accrual”).
But there’s more. Another question is easily forgotten, namely what happens if either –
•You are getting married in another country, or
•One or both of you is not South African (or more correctly, is not “domiciled” in South Africa, your formal citizenship
not being the issue here – see below).
Which country’s laws apply? The answer can make a huge difference to you both - if South African law applies, you will be married in community of property unless you contract otherwise, whilst in other countries a whole host of different rules, requirements and regimes apply.
So whose law applies?
In a nutshell – the legal and property consequences of your marriage will, unless you expressly agree otherwise, be governed by the law of the country where the husband is domiciled at the time of the marriage (your “domicile” is broadly speaking your place of permanent residence, the country where you live and have “the intention to settle ….. for an indefinite period”).
Take advice!
There is much room for confusion here. Determining “domicile” involves a court trying to determine mental state or “intention” – never an exact science at the best of times. Moreover, the concept that only the domicile of the “husband” should count is outdated and unlikely to survive Constitutional scrutiny for gender equality, nor is it practical since it cannot be applicable to same-sex marriages.
So the only way to be really sure that both of you are protected from nasty surprises as to which laws, formalities and marital regimes will apply to you is to take advice before you marry.
A case study: Mauritian law and the wife who left with nothing
A recent Supreme Court of Appeal decision illustrates the potential for confusion -
•A couple married in Mauritius in 1983
•A month later they moved to South Africa, and the wife sued for divorce after 23 years of marriage here
•She claimed 50% of two properties acquired during the marriage
•The High Court, finding on the facts that the husband had been domiciled in South Africa at the time of the marriage
and that South African law therefore applied, granted the wife a 50% share in both properties based on the
Court’s conclusion that the couple had been married in community of property (the default marital regime here)
•The SCA however decided that the husband had been domiciled in Mauritius at the time of the marriage, Mauritian
law therefore applied, the wife had not proved any entitlement to a share in the properties as required by Mauritian
law, and her claim to a half share failed accordingly.
The wife must be regretting not having taken legal advice before her marriage.
STRIKE VIOLENCE – NEW BOOST FOR POLICE PROTECTION
Our Constitution guarantees the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.
The new Dangerous Weapons Act will hopefully make it easier for the police to protect the public from any breach of the “peacefully and unarmed” requirement.
Anyone participating in a public gathering or demonstration is prohibited, on pain of up to 3 years’ imprisonment, from being in possession of any -
•Firearm,
•Imitation firearm,
•Object resembling and likely to be mistaken for a firearm,
•Airgun, or
•“Dangerous weapon” (defined as being any object other than a firearm capable of causing death or inflicting serious
bodily harm if used for an unlawful purpose).
Something that trade unions* in particular need to be aware of is their potential liability in this regard - the “convener” of the gathering, plus any marshals, are obliged to take “all reasonable steps” to ensure that these requirements are complied with. (* 24% of all employees belong to a trade union, the percentage rising to 78% in the mining and quarrying sector.)
These prohibitions do not apply to lawful activities by collectors and law enforcers, nor to participation in religious, cultural, sports, recreation or entertainment activities. Take specific advice if you aren’t sure whether you or your event fall into one of these categories.
BUDGET 2014: READ ALL ABOUT IT!
The Moneyweb website has a useful overview of the budget. Read more here:- http://www.moneyweb.co.za/moneyweb-home.
THE MARCH WEBSITE: ARE YOU USING ONE OF THESE PUTRID PASSWORDS?
With cyber criminals skulking in every corner of the Internet, you cannot afford to be using a weak password for any of your online activity.
Check your passwords against a list of 25 to be avoided like the plague, and get advice on creating strong ones, on Business Insider’s “Make Sure You Aren't Using One Of The 'Worst Passwords Of 2013'” at http://www.businessinsider.com/the-worst-passwords-of-2013-2014-
Have a Healthy, Happy and Successful 2014!
IN THIS ISSUE - March 2014