HOME OWNERS ASSOCIATIONS: CAN YOU BAN A HOME BUSINESS?
“…..there is nothing contained in our law which prevents a property owner from agreeing to a limitation of its rights…..” (Extract from judgment, below)
All Home Owners Associations (“HOAs”) and their home owner members should be aware of a recent High Court judgment addressing the knotty problem of a HOA’s powers to bar an owner from running a home-based business.
The Case: Municipal Zoning v HOA Rules
• A home owner in such a complex was bound (via both her purchase agreement and the title deeds) by a HOA’s
constitution and conduct rules.
• She had for many years conducted a home business in the form of a hair salon from her house.
• The HOA’s constitution and its conduct rules prohibited use of homes for anything other than residential purposes,
unless authorised to do so by special resolution.
• The HOA, after the home owner breached a written undertaking to cease business, applied to the High Court
to interdict her from continuing.
• The home owner’s main argument was that her home business was permitted by the local zoning regulations, which
did indeed permit certain small scale non-residential activities. The HOA, she argued, had no right to override these
zoning scheme provisions by prohibiting all non-residential use.
• The original Court found for the home owner, but on appeal to a “Full Bench” of the Court, the interdict was granted.
The Court held that “…..there is nothing contained in our law which prevents a property owner from agreeing to a
limitation of its rights…..” and the individual home owners had, by agreement, forfeited their right to use their land
for anything but residential purposes. Moreover the HOA had not purported to change the zoning scheme and was
“well within its rights to seek to preserve the residential character of the development”.
• The home owner was accordingly interdicted from continuing with her hair salon business and, to rub salt into her
wounds, must pay the HOA’s costs on the attorney and client scale.
In a nutshell
Home Owners Associations: Check your constitution and conduct rules to ensure that you have adequate powers to preserve the residential character of your development. Take advice in doubt!
Home Owners: If you want to run a home business, check both the local zoning regulations and your HOA’s constitution and conduct rules before you open your doors. Again, take advice in doubt!
HOME OWNERS ASSOCIATIONS 2: NEW VAT RULES
Until now HOAs have been obliged to register with SARS as VAT vendors where annual levies exceeded R1m. That has now changed – HOAs have been brought into line with sectional title body corporates and exempted from compulsory registration. HOAs: Take advice from a registered tax practitioner on whether or not it will be advantageous to you to apply to SARS to remain registered on a voluntary basis.
CREDIT “AMNESTY” – ARE YOUR DEBTS WRITTEN OFF?
“Confusion now hath made his masterpiece” (Shakespeare, Macbeth)
With the introduction of the new National Credit Act “Removal of Adverse Information” Regulations, media reports have created much confusion amongst both debtors and creditors over what the “amnesty” provisions actually mean.
Debtors: Good News, Bad News
The bad news first - debtors hopeful that their debts will be written off or reduced are going to be disappointed. Whatever you now owe your creditors, you continue to owe – in full. So don’t stop paying your instalments.
The good news however is that, because the Regulations are aimed at giving you a fresh new chance at obtaining credit (such as bond finance to buy a house perhaps) all credit bureaus must now remove from your credit profile -
• Any debt judgment (including a default judgment), but only after you have paid the capital amount due in full,
• Any “adverse consumer credit information” as follows –
† Subjective “adverse classifications of consumer behaviour” such as “delinquent”, “default”, “slow
paying”, “absconded” or “not contactable”,
† “Adverse classifications of enforcement action” such as “handed over for collection or recovery”, “legal action”
or “write-off”,
† Details and results of disputes lodged by you,
† Adverse credit information represented by marks, symbols, signs etc (used by some bureaus as shorthand for
their classifications).
Creditors: Are all credit records expunged?
On the other hand many credit grantors are concerned that they will, faced with a new credit application, be unable to access any credit records relating to the applicant. Not so – the bulk of the objective information (i.e. the underlying credit information and payment history of a consumer) will remain and only the records and classifications listed above will be removed. Make sure that you revisit your credit vetting, profiling and scoring systems to take account of these changes.
THE PISTORIUS TRIAL: WHAT MUST THE STATE PROVE? AND WHAT IS “DOLUS”?
“For murder, though it have no tongue, will speak” (Shakespeare, Hamlet)
The human tragedy underlying this high profile case, and the media frenzy accompanying the trial, have been accompanied by much confusion as to the legal principles involved.
What follows is of necessity a greatly simplified summary of some very complex concepts, but hopefully it will help you to follow the proceedings as we join the world in watching our justice system in action.
In order to achieve a conviction for murder the State must prove beyond a reasonable doubt that the accused –
• Caused the death of another human being
• Unlawfully (a killing is lawful if for example it results from legitimate self-defence; reasonableness and
proportionality to the threat being defended against are critical elements here)
• Intentionally (If the killing was negligent then the crime is the lesser one of “culpable homicide”).
Motive v Intention
Firstly, note that in law motive is different from intention. A person’s motive is his or her reason for committing a crime, but it is irrelevant in determining whether or not the person had intention. To complicate matters, “intention” in the legal sense does not mean the same as it does in non-legal situations. In the legal sense, “intention” (which lawyers often refer to by its Latin name “dolus” to distinguish it from the non-legal meaning) is a highly technical term encompassing both knowledge (of the act and its unlawfulness), and the “will” to act.
What is ‘dolus eventualis’?
Unfortunately it gets even more complicated – “intention” can be actual intent (“direct” or “indirect”) or - and there is much speculation that this will feature in the Pistorius verdict - it can be in the form of “dolus eventualis”. Our courts have defined it thus: “Where the accused performs an action knowing or foreseeing that somebody may be killed, and yet, despite that knowledge and reckless of the eventuation of the possible result, persists with that action, the form of intention is known as dolus eventualis.” In other words, an accused doesn’t actually mean to cause a death but proceeds with his course of action “reckless of” or “reconciled to” the possibility that his actions will cause someone’s death.
As mentioned above, if the State doesn’t prove intention as defined above, but can prove negligence, that could lead to a conviction of culpable homicide.
The “Involuntary action” defence
There is at date of writing no clarity as to whether a defence of “involuntary action” (referred to in legal circles as “automatism”) may be raised by the defence team. Conduct must (with a few exceptions) be “voluntary” to amount to criminal conduct, so if the accused’s actions “…were attributable to mechanical behaviour or muscular movements of which he was unaware and over which he had no control…” (as a 2013 Supreme Court of Appeal judgment puts it) he would be acquitted of all charges.
Sentence
What will the verdict be? Only time will tell.
But if Mr. Pistorius is indeed convicted of any crime, he faces -
• If he is convicted of “planned” or “premeditated” murder – a minimum* sentence of life imprisonment with no
possibility of parole for 25 years, or
• If he is convicted of unplanned/non-premeditated murder – a minimum* sentence of imprisonment for 15 years, or
• If he is convicted of culpable homicide, the Court will be free to assess an appropriate sentence.
(*Note that the Court can impose a lesser sentence only if it finds there to be “substantial and compelling
circumstances” justifying the imposition of less than the minimum sentence.)
EMPLOYERS: YOUR RECON DEADLINE IS NIGH, AND A NEW TAX INCENTIVE FOR THE TAKING
You have until 30 May 2014 to submit your employer reconciliation for the period 1 March 2013 to 28 February 2014. Don’t leave it to the last minute - penalties apply for late submission and you need to leave yourself time to resolve any queries or issues. You also need to download the new version of “e@syFile Employer” – go to the SARS website at http://www.sars.gov.za/TaxTypes/PAYE/Pages/Employer-Interim-Reconciliation.aspx for the link and for a full guide on completing your form EMP501 (just bear in mind that 31 May is a Saturday, so the 30th is your deadline).
A new tax incentive for the taking
Secondly, there is a new tax incentive out there: SARS’ ETI Employment Tax Incentive (commonly referred to as the “Youth Employment Incentive” or “Youth Wage Subsidy”). It is aimed at encouraging employers to hire “young and less experienced work seekers”. In broad terms you may, with a few exceptions, claim up to half the salary cost of any 18-29 year old employee with a South African ID. The incentive is in the form of a reduction of PAYE paid to SARS so it is critical that you claim correctly on your monthly EMP201s and reflect same on your EMP501.
Find full details of ETI and whether you qualify for it on the SARS website at http://www.sars.gov.za/TaxTypes/PAYE/Pages/Employment-Tax-Incentive.aspx.
Take advice from a registered tax practitioner in any doubt.
THE MAY WEBSITES: BEAT THE FLU SEASON BLUES
“Be careful about reading health books. You may die of a misprint.” (Mark Twain)
Good health is a cornerstone of both business success and personal happiness, and whilst the Internet is a gold mine of useful information and advice, it is also chock-a-block with some seriously dangerous quackery.
How to tell the good from the bad? For a start, heed Mark Twain’s warning, seek proper medical help in the slightest doubt, and before you start Googling read the NHI’s advice on “Evaluating Health Information” at http://www.nlm.nih.gov/medlineplus/evaluatinghealthinformation.html.
In particular Cold and Flu Season 2014 is upon us. With reports of more virulent strains of H1N1 headed our way (read the Washington Post’s “‘Swine flu’ strain returns; dramatic rise in deaths of young adults, children” at http://tinyurl.com/SwineFlu2014) protect yourself by reading up on symptoms, prevention and treatment with sites like these -
The University of Maryland’s “Influenza” at http://umm.edu/health/medical/altmed/condition/influenza.
The NIH’s “The Flu, the Common Cold, and Complementary Health Practices: What the Science Says” at
http://nccam.nih.gov/health/providers/digest/coldflu-science.htm.
WebMD’s “Hand Washing, Zinc May Ward Off Colds: Review” at http://www.webmd.com/cold-and- flu/news/20140127/hand-washing-zinc-may-ward-off-colds-review.
P.S. WINDOWS XP USERS WATCH OUT!
Almost 20% of PCs worldwide are thought to be still running on Windows XP.
If you are one of those XP users, watch out! With Microsoft having withdrawn support, you are now a prime target for cyber-attacks (this is going to be a month to dodge virtual viruses as well as real ones!).
The best advice seems to be to upgrade now but if that’s not an option for you at least follow the advice in “Seven Safety Tips for People Sticking with Windows XP” on Yahoo Tech’s website http://tinyurl.com/XPsafetytips.
Have a Great May (and don’t forget Mother’s Day on the 11th)!
“…..there is nothing contained in our law which prevents a property owner from agreeing to a limitation of its rights…..” (Extract from judgment, below)
All Home Owners Associations (“HOAs”) and their home owner members should be aware of a recent High Court judgment addressing the knotty problem of a HOA’s powers to bar an owner from running a home-based business.
The Case: Municipal Zoning v HOA Rules
• A home owner in such a complex was bound (via both her purchase agreement and the title deeds) by a HOA’s
constitution and conduct rules.
• She had for many years conducted a home business in the form of a hair salon from her house.
• The HOA’s constitution and its conduct rules prohibited use of homes for anything other than residential purposes,
unless authorised to do so by special resolution.
• The HOA, after the home owner breached a written undertaking to cease business, applied to the High Court
to interdict her from continuing.
• The home owner’s main argument was that her home business was permitted by the local zoning regulations, which
did indeed permit certain small scale non-residential activities. The HOA, she argued, had no right to override these
zoning scheme provisions by prohibiting all non-residential use.
• The original Court found for the home owner, but on appeal to a “Full Bench” of the Court, the interdict was granted.
The Court held that “…..there is nothing contained in our law which prevents a property owner from agreeing to a
limitation of its rights…..” and the individual home owners had, by agreement, forfeited their right to use their land
for anything but residential purposes. Moreover the HOA had not purported to change the zoning scheme and was
“well within its rights to seek to preserve the residential character of the development”.
• The home owner was accordingly interdicted from continuing with her hair salon business and, to rub salt into her
wounds, must pay the HOA’s costs on the attorney and client scale.
In a nutshell
Home Owners Associations: Check your constitution and conduct rules to ensure that you have adequate powers to preserve the residential character of your development. Take advice in doubt!
Home Owners: If you want to run a home business, check both the local zoning regulations and your HOA’s constitution and conduct rules before you open your doors. Again, take advice in doubt!
HOME OWNERS ASSOCIATIONS 2: NEW VAT RULES
Until now HOAs have been obliged to register with SARS as VAT vendors where annual levies exceeded R1m. That has now changed – HOAs have been brought into line with sectional title body corporates and exempted from compulsory registration. HOAs: Take advice from a registered tax practitioner on whether or not it will be advantageous to you to apply to SARS to remain registered on a voluntary basis.
CREDIT “AMNESTY” – ARE YOUR DEBTS WRITTEN OFF?
“Confusion now hath made his masterpiece” (Shakespeare, Macbeth)
With the introduction of the new National Credit Act “Removal of Adverse Information” Regulations, media reports have created much confusion amongst both debtors and creditors over what the “amnesty” provisions actually mean.
Debtors: Good News, Bad News
The bad news first - debtors hopeful that their debts will be written off or reduced are going to be disappointed. Whatever you now owe your creditors, you continue to owe – in full. So don’t stop paying your instalments.
The good news however is that, because the Regulations are aimed at giving you a fresh new chance at obtaining credit (such as bond finance to buy a house perhaps) all credit bureaus must now remove from your credit profile -
• Any debt judgment (including a default judgment), but only after you have paid the capital amount due in full,
• Any “adverse consumer credit information” as follows –
† Subjective “adverse classifications of consumer behaviour” such as “delinquent”, “default”, “slow
paying”, “absconded” or “not contactable”,
† “Adverse classifications of enforcement action” such as “handed over for collection or recovery”, “legal action”
or “write-off”,
† Details and results of disputes lodged by you,
† Adverse credit information represented by marks, symbols, signs etc (used by some bureaus as shorthand for
their classifications).
Creditors: Are all credit records expunged?
On the other hand many credit grantors are concerned that they will, faced with a new credit application, be unable to access any credit records relating to the applicant. Not so – the bulk of the objective information (i.e. the underlying credit information and payment history of a consumer) will remain and only the records and classifications listed above will be removed. Make sure that you revisit your credit vetting, profiling and scoring systems to take account of these changes.
THE PISTORIUS TRIAL: WHAT MUST THE STATE PROVE? AND WHAT IS “DOLUS”?
“For murder, though it have no tongue, will speak” (Shakespeare, Hamlet)
The human tragedy underlying this high profile case, and the media frenzy accompanying the trial, have been accompanied by much confusion as to the legal principles involved.
What follows is of necessity a greatly simplified summary of some very complex concepts, but hopefully it will help you to follow the proceedings as we join the world in watching our justice system in action.
In order to achieve a conviction for murder the State must prove beyond a reasonable doubt that the accused –
• Caused the death of another human being
• Unlawfully (a killing is lawful if for example it results from legitimate self-defence; reasonableness and
proportionality to the threat being defended against are critical elements here)
• Intentionally (If the killing was negligent then the crime is the lesser one of “culpable homicide”).
Motive v Intention
Firstly, note that in law motive is different from intention. A person’s motive is his or her reason for committing a crime, but it is irrelevant in determining whether or not the person had intention. To complicate matters, “intention” in the legal sense does not mean the same as it does in non-legal situations. In the legal sense, “intention” (which lawyers often refer to by its Latin name “dolus” to distinguish it from the non-legal meaning) is a highly technical term encompassing both knowledge (of the act and its unlawfulness), and the “will” to act.
What is ‘dolus eventualis’?
Unfortunately it gets even more complicated – “intention” can be actual intent (“direct” or “indirect”) or - and there is much speculation that this will feature in the Pistorius verdict - it can be in the form of “dolus eventualis”. Our courts have defined it thus: “Where the accused performs an action knowing or foreseeing that somebody may be killed, and yet, despite that knowledge and reckless of the eventuation of the possible result, persists with that action, the form of intention is known as dolus eventualis.” In other words, an accused doesn’t actually mean to cause a death but proceeds with his course of action “reckless of” or “reconciled to” the possibility that his actions will cause someone’s death.
As mentioned above, if the State doesn’t prove intention as defined above, but can prove negligence, that could lead to a conviction of culpable homicide.
The “Involuntary action” defence
There is at date of writing no clarity as to whether a defence of “involuntary action” (referred to in legal circles as “automatism”) may be raised by the defence team. Conduct must (with a few exceptions) be “voluntary” to amount to criminal conduct, so if the accused’s actions “…were attributable to mechanical behaviour or muscular movements of which he was unaware and over which he had no control…” (as a 2013 Supreme Court of Appeal judgment puts it) he would be acquitted of all charges.
Sentence
What will the verdict be? Only time will tell.
But if Mr. Pistorius is indeed convicted of any crime, he faces -
• If he is convicted of “planned” or “premeditated” murder – a minimum* sentence of life imprisonment with no
possibility of parole for 25 years, or
• If he is convicted of unplanned/non-premeditated murder – a minimum* sentence of imprisonment for 15 years, or
• If he is convicted of culpable homicide, the Court will be free to assess an appropriate sentence.
(*Note that the Court can impose a lesser sentence only if it finds there to be “substantial and compelling
circumstances” justifying the imposition of less than the minimum sentence.)
EMPLOYERS: YOUR RECON DEADLINE IS NIGH, AND A NEW TAX INCENTIVE FOR THE TAKING
You have until 30 May 2014 to submit your employer reconciliation for the period 1 March 2013 to 28 February 2014. Don’t leave it to the last minute - penalties apply for late submission and you need to leave yourself time to resolve any queries or issues. You also need to download the new version of “e@syFile Employer” – go to the SARS website at http://www.sars.gov.za/TaxTypes/PAYE/Pages/Employer-Interim-Reconciliation.aspx for the link and for a full guide on completing your form EMP501 (just bear in mind that 31 May is a Saturday, so the 30th is your deadline).
A new tax incentive for the taking
Secondly, there is a new tax incentive out there: SARS’ ETI Employment Tax Incentive (commonly referred to as the “Youth Employment Incentive” or “Youth Wage Subsidy”). It is aimed at encouraging employers to hire “young and less experienced work seekers”. In broad terms you may, with a few exceptions, claim up to half the salary cost of any 18-29 year old employee with a South African ID. The incentive is in the form of a reduction of PAYE paid to SARS so it is critical that you claim correctly on your monthly EMP201s and reflect same on your EMP501.
Find full details of ETI and whether you qualify for it on the SARS website at http://www.sars.gov.za/TaxTypes/PAYE/Pages/Employment-Tax-Incentive.aspx.
Take advice from a registered tax practitioner in any doubt.
THE MAY WEBSITES: BEAT THE FLU SEASON BLUES
“Be careful about reading health books. You may die of a misprint.” (Mark Twain)
Good health is a cornerstone of both business success and personal happiness, and whilst the Internet is a gold mine of useful information and advice, it is also chock-a-block with some seriously dangerous quackery.
How to tell the good from the bad? For a start, heed Mark Twain’s warning, seek proper medical help in the slightest doubt, and before you start Googling read the NHI’s advice on “Evaluating Health Information” at http://www.nlm.nih.gov/medlineplus/evaluatinghealthinformation.html.
In particular Cold and Flu Season 2014 is upon us. With reports of more virulent strains of H1N1 headed our way (read the Washington Post’s “‘Swine flu’ strain returns; dramatic rise in deaths of young adults, children” at http://tinyurl.com/SwineFlu2014) protect yourself by reading up on symptoms, prevention and treatment with sites like these -
The University of Maryland’s “Influenza” at http://umm.edu/health/medical/altmed/condition/influenza.
The NIH’s “The Flu, the Common Cold, and Complementary Health Practices: What the Science Says” at
http://nccam.nih.gov/health/providers/digest/coldflu-science.htm.
WebMD’s “Hand Washing, Zinc May Ward Off Colds: Review” at http://www.webmd.com/cold-and- flu/news/20140127/hand-washing-zinc-may-ward-off-colds-review.
P.S. WINDOWS XP USERS WATCH OUT!
Almost 20% of PCs worldwide are thought to be still running on Windows XP.
If you are one of those XP users, watch out! With Microsoft having withdrawn support, you are now a prime target for cyber-attacks (this is going to be a month to dodge virtual viruses as well as real ones!).
The best advice seems to be to upgrade now but if that’s not an option for you at least follow the advice in “Seven Safety Tips for People Sticking with Windows XP” on Yahoo Tech’s website http://tinyurl.com/XPsafetytips.
Have a Great May (and don’t forget Mother’s Day on the 11th)!