Tuesday, April 27, 2010
Arrogance or ignorance?
A Conveyancer’s Diary: Monday 26th April 2010
Arrogance or ignorance?
This one is about “traffic fines”.
I have always understood, since my second year studying law at university, that only a Court may impose a sentence of a fine (or imprisonment) after finding an offender guilty.
No traffic officer, no matter how highly placed, has that power. So, when the local metro issues and sends me a notice to the effect that on a certain day and time it is alleged that I committed xyz offence by exceeding the speed limit [See section 59(4) of the National Road Traffic Act 93 of 1996], then no matter how much the metro or its “deployed cadre bosses” want to usurp a Court of Law’s powers, it cannot do so. [Section 89 of the same Act clearly provides for a person to be “found guilty of an offence” in terms of the act and goes further to say that a person found guilty of an offence in terms of the Act, may be fined or imprisoned, the period of such imprisonment being limited, depending on what offence is committed.]
And, if one is accused of a crime, one has a right, enshrined in our Constitution, to a fair trial [Section 35(3) of The Constitution of the Republic of South Africa, 1996].
Which, if I am correct, implies that the authorities have a DUTY to ensure that an accused person is actually given a trial [and not just “fined”] and that such authorities must either bring the matter before a Court of law or withdraw the notice.
So, when an ANC Councillor by the name of Nomvuzo Shabalala, is quoted in our local municipal propaganda broadsheet* as saying: “If you have fine, you need to pay it or you will be arrested”, then one must take that with a pinch of salt and treat the statement with circumspection. If the metro has simply issued a notice of an alleged offence, you are entitled to ignore it until they issue a notice for you to appear in Court. If they do nothing, and you are not found guilty by a Court of Law, you have every right to ignore the notice and you cannot be “arrested” for such a notice. Such arrest will be unlawful. You may only be arrested once a warrant of arrest has been issued by a Court of Law [unless you are suspected of committing a very serious offence. Exceeding the speed limit by a relatively small amount is not a serious offence for which one can be arrested without a warrant, unless off course you are driving so fast that what you are doing is reasonably considered as dangerous driving.]
I have now been trying to get our local metro for the past three years to actually issue notices to appear in court on various alleged traffic offences but it has still failed to do so.
Regards,
Sieg
*called the “metro ezasegagasini”
Quote:
“In the Durban [High] Court the lunch adjournment is designed to enable the judges to walk to the Durban Club and back for lunch, something none of them have done for years.”
Judge Malcolm Wallis in his eighth Victoria and Griffiths Mxenge Memorial Lecture, as quoted in the Sunday Tribune of 25th April 2010
Saturday, April 24, 2010
The persons
A Conveyancer’s Diary: Friday 23rd April 2010
The persons
One of the tricks in preparing conveyancing documents, is to know when to use the first (I, We) or the third (she, they) person.
The Power of Attorney is in the first person because the mentioned person is making a statement: “I hereby authorize Jane Salt to appear before the Registrar and to declare that I sold the property”. So, if Jane needed to be “assisted” by her husband in the Power of Attorney, then this would also be set out in the first person: “I, Mary Smith, duly assisted by my husband. . . “ etc.
The Deed of Transfer however, is different: it records the story and is in the third person: “It is made known that Jane Salt appeared before the Registrar of Deeds, she being authorized by a Power of Attorney granted to her by Mary Smith at Johannesburg on 23rd April 2010” and it then goes on to describe the sale, the reason for the transfer, the property description, and so on.
Sometimes the preparer of the documents forgets this little subtle difference.
Regards,
Sieg
Quote:
“ Always and never are two words you should always remember never to use. ”
Wendell Johnson
The persons
One of the tricks in preparing conveyancing documents, is to know when to use the first (I, We) or the third (she, they) person.
The Power of Attorney is in the first person because the mentioned person is making a statement: “I hereby authorize Jane Salt to appear before the Registrar and to declare that I sold the property”. So, if Jane needed to be “assisted” by her husband in the Power of Attorney, then this would also be set out in the first person: “I, Mary Smith, duly assisted by my husband. . . “ etc.
The Deed of Transfer however, is different: it records the story and is in the third person: “It is made known that Jane Salt appeared before the Registrar of Deeds, she being authorized by a Power of Attorney granted to her by Mary Smith at Johannesburg on 23rd April 2010” and it then goes on to describe the sale, the reason for the transfer, the property description, and so on.
Sometimes the preparer of the documents forgets this little subtle difference.
Regards,
Sieg
Quote:
“ Always and never are two words you should always remember never to use. ”
Wendell Johnson
Thursday, April 22, 2010
[Sometimes] its (all) in the font
A Conveyancer’s Diary: Thursday 22nd April 2010
[Sometimes] its (all) in the font
One of the most frustrating events that a conveyancer faces, is when the documents are “rejected” by the Deeds Office, for whatever reason. In a quest to achieve “zero reject” status, I am overly cautious in checking the documents once my assistant has prepared these (and she checks the documents as well). So, for example, the owner’s details are checked against the current title deed, against the Deed Search printout and against their identity documents (to see, for example, if the owner’s identity number has changed, or whether the marital status is different to that as indicated on the title deed.) This is the one time in the process when I actually “slow down”, so that the process can be “speeded up” by not having any rejections later. A rejection in the deeds office costs about 8 days as the error must be corrected and the documents re-lodged, to go through the whole examination process in the deeds office a second time.
A day or so ago I checked some transfer documents which my assistant had prepared and as usual, the draft Deed of Transfer had my little “tick” marks next to the vital information. The draft deed was forwarded to the bond attorneys who are registering the bond for the bank. My assistant had a call today from the conveyancing paralegal at the bond attorneys who told her that we had spelled the name of the building incorrectly in the draft deed. To give a clearer picture of the problem, let’s say the building is called “Dailmont Mansions”. Ostensibly we had spelled it as “Dallmont Mansions”. So, we had an “l” where there should be an “ i “. My assistant checked our printed out draft and also checked the document on the computer. No, we had it correctly spelled as “Dailmont”.
Our only guess was that in faxing the draft deed to the bond attorneys, the quality of the font dissipated and the “ i “ became elongated to show up as an “l”.
The conveyancing software uses the Arial font. I prefer, thanks to Judi, the Georgia font.
So, sometimes the apparent error is (possibly) in the font.
Regards,
Sieg
Quote:
“My own personal experiences as a layperson and a student of law have given me a profound insight and immense appreciation for those unsung heroes of the legal profession who provide so freely and unhesitatingly of their time, knowledge and expertise without as much as a thought of consideration for payment thereof”
Vincent StLaurant Phillips in a letter published in the De Rebus, May 2010 [I received the online version of next month’s De Rebus today].
Monday, April 19, 2010
A Conveyancer’s Diary: Monday 19th April 2010
________________________________________
The case of Mr. T and his huge water consumption
Mr. T owns a unit in a sectional title complex which, so I have heard, is quite notorious for the many problems that this complex has.
Mr. T has sold his unit and as part of the normal conveyancing routine, my offices requested the eThekwini Municipality to provide a Rates Statement [which the eThekwini Municipality calls an “Attorney’s Report”, a rather misleading appellation.]
We then duly received this report and it showed, next to the item “water”, that there was an amount of R12,200.00 owing by Mr. T. So, Mr. T or the occupants of his 54 square meter unit are alleged to have consumed some Twelve thousand Rands worth of water. They must have filled and emptied the entire unit a few times!
My assistant alerted Mr. T to this and gave him a copy of the “Attorney’s Report”. He, so I understand, took this to the good people of the eThekwini Municipality located at the Florence Mkhize building there in the heart of Durban. He came back to us with an amended “Attorney’s Report”, on which this amount for water was now totally omitted.
I can but only guess that the Body Corporate of this complex is in arrears with its water account and our wise and wonderful eThekwini Municipality decided to lump the entire bill onto the poor shoulders of Mr. T.
Regards,
Sieg
________________________________________
Quote:
“Creditors have better memories than debtors”
Benjamin Franklin
[In the movie, “Slumdog Millionaire”, Jamal is asked the question: “Whose face appears on the US $100 dollar note?” See http://en.wikipedia.org/wiki/United_States_one_hundred-dollar_bill]
________________________________________
The case of Mr. T and his huge water consumption
Mr. T owns a unit in a sectional title complex which, so I have heard, is quite notorious for the many problems that this complex has.
Mr. T has sold his unit and as part of the normal conveyancing routine, my offices requested the eThekwini Municipality to provide a Rates Statement [which the eThekwini Municipality calls an “Attorney’s Report”, a rather misleading appellation.]
We then duly received this report and it showed, next to the item “water”, that there was an amount of R12,200.00 owing by Mr. T. So, Mr. T or the occupants of his 54 square meter unit are alleged to have consumed some Twelve thousand Rands worth of water. They must have filled and emptied the entire unit a few times!
My assistant alerted Mr. T to this and gave him a copy of the “Attorney’s Report”. He, so I understand, took this to the good people of the eThekwini Municipality located at the Florence Mkhize building there in the heart of Durban. He came back to us with an amended “Attorney’s Report”, on which this amount for water was now totally omitted.
I can but only guess that the Body Corporate of this complex is in arrears with its water account and our wise and wonderful eThekwini Municipality decided to lump the entire bill onto the poor shoulders of Mr. T.
Regards,
Sieg
________________________________________
Quote:
“Creditors have better memories than debtors”
Benjamin Franklin
[In the movie, “Slumdog Millionaire”, Jamal is asked the question: “Whose face appears on the US $100 dollar note?” See http://en.wikipedia.org/wiki/United_States_one_hundred-dollar_bill]
Thursday, April 15, 2010
A little note and Apollo 13
A Conveyancer’s Diary: Wednesday 14th April 2010
________________________________________
A little note on Transfer Duty [and a quote from Apollo 13]
When a property is transferred, the implications of the Transfer Duty Act [which has been around since 1949] must be considered. The conveyancer needs to ask: “Is transfer duty payable or is the transaction possibly exempt from transfer duty?” Section 9 of this Act, sets out when a transaction involving property would be exempt. So, for example, if the transaction is vatable (whether vat is actually payable or not), then it is exempt from transfer duty.
Now, consider the following scenario: Mrs A and Mr A are married out of community of property and they get divorced. The house is registered in Mr. A’s name. In the settlement agreement, he agrees to transfer the house in full to Mrs. A. Is there transfer duty payable on this transaction?
Fortunately, the Transfer Duty act was amended in 2006 and now provides that in this case, the transaction would be exempt from transfer duty. Note that the divorced spouse must acquire the “sole ownership” of the property.
Regards,
Sieg
Quote:
“Ok, Houston, we’ve had a problem here.”
Fred [“Frodo”] Haise, today, exactly forty years ago, [14th April 1970] during the mission [moon bound] of Apollo 13. Apollo 13 was supposed to have been the third mission to land men on the moon. Haise and Jim Lovell would have been numbers 5 & 6 to walk on the moon.
________________________________________
A little note on Transfer Duty [and a quote from Apollo 13]
When a property is transferred, the implications of the Transfer Duty Act [which has been around since 1949] must be considered. The conveyancer needs to ask: “Is transfer duty payable or is the transaction possibly exempt from transfer duty?” Section 9 of this Act, sets out when a transaction involving property would be exempt. So, for example, if the transaction is vatable (whether vat is actually payable or not), then it is exempt from transfer duty.
Now, consider the following scenario: Mrs A and Mr A are married out of community of property and they get divorced. The house is registered in Mr. A’s name. In the settlement agreement, he agrees to transfer the house in full to Mrs. A. Is there transfer duty payable on this transaction?
Fortunately, the Transfer Duty act was amended in 2006 and now provides that in this case, the transaction would be exempt from transfer duty. Note that the divorced spouse must acquire the “sole ownership” of the property.
Regards,
Sieg
Quote:
“Ok, Houston, we’ve had a problem here.”
Fred [“Frodo”] Haise, today, exactly forty years ago, [14th April 1970] during the mission [moon bound] of Apollo 13. Apollo 13 was supposed to have been the third mission to land men on the moon. Haise and Jim Lovell would have been numbers 5 & 6 to walk on the moon.
Thursday, April 1, 2010
A Conveyancer’s Diary: Thursday 01st April 2010
April Fools day
Today is commonly known as “April fool’s day” and we can expect some “prankster” reports in the media.
So, on a lighter note, I can do no better than to refer you to the Wikipedia entry on April Fool’s day. See the items on pranks further on in the article. http://en.wikipedia.org/wiki/April_Fools%27_Day
I wish you a blessed Easter holiday. For those of you who will be on the road over the weekend: do take care!
Regards,
Sieg
________________________________________
Quote:
“ I am satisfied that the suicide note was intended by the deceased to be an amendment of his will as contemplated by s 2(3) of the Wills Act.”
Per Seriti, AJA (Acting Judge of Appeal) in the decision of Smith v Parsons NO and Others (187/09) [2010], handed down by the Appeal court on 30th March 2010 and which overturned an earlier decision of the Durban High Court. See http://www.saflii.org/za/cases/ZASCA/2010/39.html [My underlining]
Today is commonly known as “April fool’s day” and we can expect some “prankster” reports in the media.
So, on a lighter note, I can do no better than to refer you to the Wikipedia entry on April Fool’s day. See the items on pranks further on in the article. http://en.wikipedia.org/wiki/April_Fools%27_Day
I wish you a blessed Easter holiday. For those of you who will be on the road over the weekend: do take care!
Regards,
Sieg
________________________________________
Quote:
“ I am satisfied that the suicide note was intended by the deceased to be an amendment of his will as contemplated by s 2(3) of the Wills Act.”
Per Seriti, AJA (Acting Judge of Appeal) in the decision of Smith v Parsons NO and Others (187/09) [2010], handed down by the Appeal court on 30th March 2010 and which overturned an earlier decision of the Durban High Court. See http://www.saflii.org/za/cases/ZASCA/2010/39.html [My underlining]
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