Thoughts Of The Week
For an agreement to come into effect, consensus must be reached in respect of all the material terms.
If one party offers and the other accepts, but at the time of signing the latter makes alterations to the contract, can it be said that the first signatory accepted the changes to the contract, or does that person have to acknowledge the changes after they have been made?
This issue was addressed in the recent judgment of Cooper v Clark, where the Court referred to two previous Supreme Court of Appeal judgments. The one concluded that conditional acceptance of an offer does not constitute a contract, but rather a counter offer, and would only become a binding contract on acceptance of the alterations. The other emphasised that where such change amounts to a material alteration of the contractual terms, it constitutes a counter offer and that until accepted, is unenforceable.
Therefore, any material alteration made by one party after the other has signed the agreement, must be accepted by the latter to be enforceable.
Contact STBB for guidance in finalising your sale or purchase agreement.
Many landlords and tenants make use of the Rental Housing Tribunal to resolve disputes that arise during the course of a lease. In the Tribunal, parties represent themselves and if legal guidance is needed, a party will consult with his attorney beforehand for advice as to his rights in the matter and the Tribunal’s procedure.
However, the Tribunal may not give an order evicting a tenant. A landlord seeking eviction must therefore approach a Magistrate or High Court and would need the services of an attorney.
The attorney and landlord will follow the procedures of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (PIE), these being designed to provide procedural protection to a tenant before eviction.
Speak to STBB for assistance in any issue relating to your lease agreement.
Motor vehicle accidents usually give rise to three legal processes:
- A criminal case where the State will prosecute the wrongdoer or accused;
- A civil claim for the material damages to the vehicles and its contents or load (usually dealt with by your insurer); and
- A statutory claim against the Road Accident Fund for damages as a result of injuries or death of a party involved in the accident.
It is very important to understand that, although these are three separate legal processes, they are very closely linked and the outcomes of each will affect the other.
Contact STBB if you have been involved in a motor vehicle accident and need assistance or representation.
If South African law applies to your estate, you have complete freedom to leave your assets to whoever you may choose. However the Maintenance of Surviving Spouses Act entitles a spouse who has not been adequately provided for in the will of his/her predeceased spouse to claim, in certain circumstances, maintenance from the predeceased spouse’s estate. In addition a parent has to provide for the maintenance of his or her dependant children and if no provision is made for this in the will, the children can claim from the estate. Remember also that the surviving spouse of the deceased may have a claim against the deceased’s estate by virtue of the law governing the marriage or an antenuptial contract. Spouses who are married in community of property have a right in law to one half of the net value of the joint estate.
Contact STBB for assistance in all your estate planning matters.
In the recent matter of Smith v ABSA Bank Limited, the court noted that “(T)his case yet again demonstrates the need to be careful when dealing with a trust.” In this instance, judgment that was obtained against a surety was successfully overturned after the surety showed that the loan agreement between the trust and the bank had not been signed by two trustees, as required in the trust’s founding documents. This rendered the loan invalid and the suretyship followed the same fate, it being “a trite principle of law that a surety’s obligation is an accessory obligation, and for there to be a valid suretyship there has to be a valid principal obligation between the debtor and the creditor.”
Many property practitioners deal with trusts on a daily basis, whether as purchasers, sellers, borrowers or grantors of rights. It is important to remain vigilant of the special requirements pertaining to dealings with and by trusts, to avoid invalidity.
Contact STBB should you require assistance.
“I wish to bequeath specific items of jewellery to each of my children. Must these bequests be reflected in my will or can I do a letter of wishes?”
A letter of wishes is not a legally binding document. If your heirs in terms of your will are prepared to abide by the terms of a letter of wishes insofar as the distribution of the jewellery is concerned then that is in order but if they disagree then the assets must be dealt with strictly according to the will. It is therefore preferable to reflect the bequests in the will.
Contact STBB for professional assistance in your estate planning.
The law does not prevent a lay person from drawing up his own will but there are many legal formalities which must be complied with for a will to be valid. Often these are overlooked by the inexperienced will draftsman with the result that the will is rendered invalid, a situation which may only be capable of rectification by a costly application to the High Court. In addition there are many issues which may need to be dealt with in a person’s will which might not be unless professional advice is sought.
It is therefore considered prudent to seek advice when drafting your will. Contact us on STBB for a referral to a professional.
If I give my spouse a power of attorney to operate on my banking accounts, will he or she still be able to continue to operate these accounts after I die?
In terms of South African law a power of attorney granted by a person during his or her lifetime becomes null and void when the person who granted it dies.
In addition, once a person has passed away no one is legally permitted to deal with any assets in that person’s estate except an executor in whose favour the Master of the High Court has issued Letters of Executorship.
Pete and Jane own a sectional title unit in a quiet residential scheme. With their children away on gap years and studies, and with a view to bolstering their retirement savings, they decide to make the now empty accommodation available as Airbnb rental.
All goes well until a note from the trustees arrives, advising that due to complaints received from other owners, they plan to pass a resolution to create a new conduct rule prohibiting short term letting.
It is not so simple. Whether it relates to Airbnb, keeping of pets, the use of visitors’ parking bays or any other such provisions, conduct rules in a sectional title scheme can only be amended or varied after a special resolution to this effect has been passed by the owners. In addition, it must be noted that the new rule will only become effective once it has been submitted to and approved by the office of the Community Scheme Ombud.
Contact the sectional title scheme experts at STBB for first-class assistance in sectional title matters.
Many landlords and tenants make use of the Rental Housing Tribunal to resolve disputes that arise during the existence of a lease. In the Tribunal, parties represent themselves and if legal guidance is needed, a party will consult with his attorney beforehand for advice as to his rights in the matter and the Tribunal’s procedure.
However, the Tribunal may not give an order evicting a tenant. A landlord seeking eviction, must therefore approach a Magistrate or High Court and would usually require the services of an attorney.
The attorney and landlord will follow the procedures of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), these being designed to provide procedural protection to a tenant before eviction.
Speak to STBB for assistance in any issue flowing from your lease agreement.