What should you do, as seller of a property, if the buyer assures you that he/she was not introduced to the property by any estate agent, and that you are accordingly not liable for any commission?
The saving in commission will no doubt in practice be shared between you and the buyer when you come to negotiate a final sale price, but beware! If it subsequently emerges that the buyer has misled you, and that an agent was actually the “effective cause” of the sale in circumstances entitling the agent to commission, you will have to pay up.
That’s exactly what happened in a recent High Court case where a seller was sued for commission, and ended up paying the agent R131.056 plus legal costs.
Fortunately, you have an effective way to protect yourself from this type of unpleasant surprise – ensure that your sale agreement with the buyer:
1. Records that you have dealt directly with each other without any introduction by an agent, and
2. Contains an indemnity by the buyer for any unforeseen commission claim against you.
In the case in question, a properly-drawn indemnity clause saved the day for the seller, who obtained judgment against the buyer for all his losses.
UNFAIRLY DISMISSED? DON’T LOSE YOUR COMPENSATION CLAIM!
If you are unfairly dismissed, don’t assume that you are automatically entitled to compensation. Whilst our law offers you strong protection from unfair labour practices, there are still instances in which your actions could prejudice your claim for redress.
That is exactly what happened in a recent case before the Supreme Court of Appeal, in which a medical doctor had, both sides agreed, been unfairly dismissed by her employer. However the employer, on realising his mistake, made several offers of reinstatement “genuinely and in good faith”. The employee resolutely declined these offers, and took alternative employment (at a higher salary, but after 4 months of unemployment).
The Court found that “the rejection of the repeated offers of reinstatement was unreasonable and she has only herself to blame for her financial loss” – accordingly, no compensation was payable.
The outcome would have been different had she been able to justify her refusal of the reinstatement offers by, for example, showing that there had been a breach of trust that could not be restored, the Court commenting that “…. these are two professional people who might be expected to resolve any acrimony that might earlier have existed”.
Employees: if you are unfairly dismissed, take proper advice before rejecting any offer of reinstatement (or any other remedy offered).
Employers: first prize of course is to handle any dismissal proceedings correctly from the start – but if you do make a mistake, take advice immediately on how best to correct it.
“FAMILY LOANS” – WHEN CAN’T YOU RECOVER THEM?
“Neither a borrower nor a lender be” (Shakespeare)
Strange as it may seem, the provisions of the NCA (National Credit Act) may well apply to some “family loans”, even those between parent and child.
That’s important, because loans can be difficult to recover (even unenforceable) if you don’t abide by the NCA’s multitude of requirements and credit worthiness checks. In addition, the NCA requires that certain formalities be complied with before any legal action to enforce repayment is taken. You must for example deliver a notice to the borrower drawing attention to the default, and proposing that he/she refers the credit agreement for arbitration, counselling etc.
In a case recently before the High Court, a mother had lent her daughter R600.000, on extremely favourable terms, to assist her in buying a seaside property. The loan was subject to various conditions including payment of monthly interest on the loan, and registration of a second bond as security. The mother sued for repayment when the daughter breached these conditions – but the Court found that the loan was subject to the NCA, and that the claim was defective for lack of the required notice.
The NCA applies “to every credit agreement between parties dealing at arm’s length”, so a loan between relatives will always have to be tested against the “arm’s length” principle. The NCA specifically covers this situation, providing that it will not apply where the parties are:
1. In a “familial relationship”; and
2. Dependent or co-dependent on each other.
The question of dependency is, therefore, key. In this case, although of course a very close family relationship was involved, the mother and daughter were found to be “in fact and in law independent of each other”. Moreover, “they strove to gain the maximum possible benefit from the transaction for themselves” – another indication that the transaction was indeed an arm’s length one. The NCA therefore applied.
Although the Court referred to “the parties’ unique circumstances” in this case, one may envisage many circumstances in which an older relative might loan monies to a younger one in return for some reciprocal benefit, perhaps including – as in this case – a regular monthly income from interest.
It seems that you should carefully consider the enforceability of any such family arrangement with reference to the stringent requirements of the NCA.
UNLAWFUL ARREST: MORE PROTECTION FOR THE PUBLIC
Anyone who is arrested unlawfully should immediately seek advice on claiming damages.
Until now, such claims – and the attendant legal costs – have been paid by Government. As the High Court has pointed out in a recent judgment, the result is that effectively we the public have been footing the bill for the unconstitutional actions of officials “who think that they can do as they please, simply because they have the force of the whole law enforcing system behind them”.
That however looks set to change. In the case in question, a motorist had been arrested by the Metro police and then detained by SAPS, who refused to release him on “police bail” (which the police are obliged to consider granting in less serious matters). The Court, in an urgent late-night application, ordered the motorist’s immediate release.
Thereafter, holding both the arrest and the detention to have been unlawful, the Court ordered that:
• The costs of the application be paid, not by the State as would normally be the case, but by the Metro Police and SAPS officers themselves in their personal capacities,
• The officers must personally pay not just the motorist’s legal costs, but also those incurred by the State and by the National Commissioner of Police,
• The punitive “attorney and own client” scale is to be applied to these costs.
Note that the Court’s warning isn’t confined to just police officers, but applies to all public officials: “Any public official who knows that he would be ordered personally to pay costs of any court application or litigation flowing from his unlawful actions, instead of the taxpayer having to carry such a burden, and such an official not suffering any consequences therefrom, will think twice before acting in the manner and fashion those responsible in this matter had acted.”
IMPERSONATED ON TWITTER? VICTIM OF CYBER-BULLYING? YOUR REMEDY
With the exponential growth in the use of Twitter and other social media for both personal and business communication, you could be faced at some time with one or both of these unfortunate situations:
• You and/or your business are impersonated on Twitter by some anonymous competitor or jokester using your name and/or trade names.
• Or perhaps you (more likely your children) become victims of “cyber-bullying”.
What can you do about it?
If Twitter itself can’t resolve the problem for you (they do try to prevent abuse, but for example decline to “intervene in disputes between users”, and allow “parody” as opposed to “impersonation”), take advice on whether you can get a court order interdicting the impersonator from continuing.
Your challenge here is that the Internet is a fantastic hiding place for anonymity, so you may well struggle to find the impersonator/bully in order to serve the court order on him/her.
But there may be a remedy. Although normally court process must be served on the other party either personally or in one of several other prescribed ways, the court may (on application) allow you to effect what is called “substituted service”. This might involve publication in the local media and government gazette, service via fax or e-mail, or perhaps service on a relative of the impersonator – but of course none of those are likely to help much with an anonymous tormentor who could be operating from anywhere!
The answer might well lie in service via social media itself. An increasing number of foreign countries have been allowing service via Facebook in appropriate cases, and the English High Court has even allowed service via Twitter. Hopefully our courts will likewise rise to this new challenge.
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