Removing an unpaying tenant

B2

If your tenant has failed to pay his or her rent, it can be tempting to simply kick them out yourself and change the locks. However, do so would be considered illegal, even if the tenant has become an illegal occupant. The reason is because of the PIE Act.

In sum, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (1998) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant.

Who is covered?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act

When is an eviction lawful?

  1. For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:
  2. give the occupier notice of his/her intention of going to court to get an eviction order.
  3. apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier.
  4. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.

After a landlord intrusts their attorney to commence eviction proceedings, the following happens:

  1. Typically, (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time);
  2. If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property;
  3. The attorney then applies to court for permission to begin the eviction process. The court gives a directive as to how and on whom notice of eviction should be served;
  4. The attorney doesn’t give the tenant notice at this time;
  5. The application to court sets out the reasons for the application and the personal circumstances of the occupants;
  6. If the courts are satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served;
  7. The sheriff then serves the notice of intention to evict on the tenant and the Local Municipality;
  8. The occupants have an opportunity to oppose the application, and explain why they should not be evicted;
  9. If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted, and if so, by when the occupants should vacate the property within a stipulated time;
  10. If the tenant does not oppose, the court will grant the eviction order;
  11. If the tenant fails to move, the attorney will apply to Court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

What happens if I die without a will?

B1Attorneys often emphasise the fact that you should have a will drawn up and revise it regularly in order to facilitate the administration of your possessions after your death. Many people still neglect to do this. The problem is that, should a person die without leaving a valid will, in other words intestate, his/her estate will be administered and distributed according to the stipulations of the Intestate Succession Act, 1987.

Below is a basic example of the effect an intestate death will have on the distribution of an estate. Should the composition of the beneficiaries of the deceased be more complex, the administering of the estate in terms of the Intestate Succession Act will also become more complicated.

Let us assume that person A dies and the value of his estate is R1.8 million. He is survived by his wife (B) and two children, of which one is of age and the other is a minor.

Scenario 1:

A and B are married out of community of property.

B inherits R250 000 or a child’s portion, whichever is the largest.

A child’s portion is calculated by dividing the total value of the estate by the spouse and number of children, in other words R1.8 million/3 = R600 000.

The spouse and children therefore inherit R600 000 each.

Scenario 2:

A and B are married in community of property.

B inherits 50% of the estate due to the marriage in community of property.

B also inherits R250 000 or a child’s portion, whichever is the largest, with regard to the other half of the estate.

A child’s portion is calculated by dividing half of the total value of the estate by the spouse and number of children, in other words R900 000/3 = R300 000.

The spouse inherits R1.2 million and the children R300 000 each.

How does a minor receive their inheritance?

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that a minor’s inheritance should be placed in e.g. a testamentary trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age.

The fact that the inheritance of a minor will be paid to the Master’s Guardian’s Fund may place the spouse in a dilemma such that he/she has to devise plans to finance the amount payable to the Master’s Guardian’s Fund to the benefit of the minor. Alternatively, she could register a mortgage against an immovable property in favour of the Master’s Guardian’s Fund.

When there’s no will

In the case of a death without a valid will there will be no person or institution appointed to support the surviving spouse in the administering of the estate. This should not usually present a huge obstacle, but the spouse should consider carefully which person or institution he/she appoints to assist them in this task. He/she should also negotiate the executor’s fee with the relevant person or institution before the administering of the estate commences.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Should I draft a will?

B2A mother who has always wanted her daughter to inherit her diamond engagement ring may never get her wish granted if she dies without leaving a valid written will. The mother’s estate would then be distributed in terms of the Intestate Succession Act No. 81 of 1987. 

Know where you want your possessions to go

Taking the time to draft a will can leave you with the peace of mind that your assets will be distributed according to your wishes as far as possible. Your will should reflect exactly how you want your assets to be dealt with after your death and should not be contra bonos mores (against good morals). It should also not amount to “ruling from the grave”.

What makes a valid will?

There are a number of legal requirements that have to be complied with for a will to be valid.  If it does not comply with all of these requirements it could be found to be invalid. Your estate would then also be dealt with in terms of the Intestate Succession Act of 1987. It is therefore very importance that you obtain the assistance of a lawyer to help you raft a will.

A will should also regularly be revised and updated to adapt to your changing circumstances, for example after getting married, and when there is a child in the mix. Section 2B of the Wills Act No. 7 of 1953 (as amended by the Law of Succession Act No. 43 of 1992) deals specifically with a change in marital status by way of divorce, and reads as follows:

If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage.”

An example

A and B get divorced and B dies within three months of the date of the divorce. B’s will was executed before they got divorced. Unless B’s will specifically indicated that A must benefit from B’s estate despite the divorce, B’s estate will then be distributed as if A died before they got divorced. A will therefore not inherit from B’s estate in this scenario. However, should B die more than 3 months after the divorce and B’s will, which benefits A, was not changed, then it will be seen as if B intended A to inherit, despite the divorce.

A person who was previously married and who remarries, should ensure that the necessary changes are made to his/her will. If not, this could have profound consequences for the “new” spouse, especially if the will still benefits the spouse from the previous marriage.

When there are minor children in the picture, it is advisable to make adequate provision for their living costs and education in your will. This can be done by creating a testamentary trust of which the minor children can be beneficiaries.

Conclusion

Thinking and talking about one’s passing is not a pleasant subject. Having a valid, clear and unambiguous will can prevent unpleasant family feuds caused by them having to make decisions about the distribution of your estate. It is certainly worth the time and effort to have a valid written will in place.

References:

Drafting of Wills 2013 – LEAD

Intestate Succession Act 81/1987

Wills Act 7/1953

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

The risk of EFT fraud when selling a car

B1Electronic Funds Transfers, better known as EFTs, have become a popular payment method in South Africa, accepted by many in lieu of cash or cheque payments. This allows buyers to reverse payments and essentially fraud sellers into thinking that they’ve been paid.

Many accept the printed EFT document as “proof” of a cash payment into the bank account, especially in the selling and buying of motor vehicles. They insist on the transfer to be made immediately there and then, after which the vehicle is transferred and registered to the buyer on the same day.

How do EFTs get abused?

The abuse of EFTs made to the seller’s bank account, especially between different financial entities, is yet another devious manner in which the original Natis documentation or registration of ownership of a motor vehicle can be obtained with no intention to honour the actual payment.

EFTs are governed by agreements between the various financial entities. Depending on the agreement, an EFT transaction can take up to two days to actually reflect as a deposit on the statement of the seller. The risk of accepting proof of an EFT as “proof” of actual payment as if it was a cash deposit, puts the seller at a real risk of being defrauded.

Most ordinary citizens do not know that an EFT can be reversed within a few hours after it has been made, depending on the individual financial institute at which the account is held. Devious fraudsters who are know the mechanics of the law and the financial systems in South Africa, use this knowledge to the detriment of others.

How to make payments more secure

In the sale of a motor vehicle, or any other object of which ownership is registered on the eNatis system, the Natis registration document is a very useful instrument to secure and verify payment prior to the transfer of registered ownership.

The easiest safeguard against any risk of loss because of non-payment, is the current, valid and original Natis document, reflecting the registered owner and titleholder of a vehicle.

For as long as the seller of the vehicle retains the possession of the original Natis document reflecting the seller as the registered owner, no fraudster or any other person can obtain registered ownership of the vehicle, unless the seller physically enables them to do so. Once payment actually reflects on the bank statement the necessary documentation should be handed over to effect transfer of registration to the purchaser or his nominee.

Should a seller hand the original Natis registration documents over prior to actual confirmation of payment, the vehicle can be traded and registered to any innocent third party, while the seller still waits for payment.

As no party to an agreement can transfer more rights than they are legally entitled to at that time, the seller will be able to claim the motor vehicle from any person who has such motor vehicle in his/her possession, even if the possessor at that stage has “purchased and paid” the vehicle.  As long as the motor vehicle has not been transferred and registered to a purchaser who has not paid for same, the seller can safeguard themselves in such a fraudulent transaction.

What happens if I’ve been defrauded?

In the event of the payment not coming through, your rights as seller can be enforced by means of a very simple but highly effective application to a court, which can be done with an interim relief order to return the vehicle by the Sheriff of the Court to the registered owner of the car at a date on which service is to be effected on the purchaser. After that, the normal motion procedure is followed. It is also recommended to issue a summons for the cancellation of the agreement, return of the vehicle, cost and interest simultaneously.

For as long as the seller retains and holds on to the original Natis documents on which he/she is reflected as the registered owner of the motor vehicle, the seller will have a definite right to be the entitled possessor of the motor vehicle.

A seller who has already caused registration of the vehicle to be transferred to the purchaser prior to having the payment secured, is left in a risky position. The seller has very little hope of success against such a buyer with the intention to defraud. A litigation process can be prolonged and costly with no guarantee of recovery of the loss.

For further reading, see Unitrans Automotive (Pty) Ltd vs Trustees of the Rally Motors Trust 2011 (4) SA 35, just one of the transactions during a shopping spree of fraudulent transactions using EFTs by a fraudulent purchaser, and other matters referred to in the judgement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Do it NOW, for LATER

2 - CopyImagine being able to control the future, just by signing a few documents with your attorney now? Get it done sooner, because the dreaded future could come tomorrow.

Drafting a Will is a carefully thought out process, because it is your last wish. By doing it now, you can take your time, and make changes if there are any you want to make.

Make an appointment with an attorney to draft your Will – FREE during National Wills Week (11 to 15 September 2017).

Get started this Wills Week by getting in touch with one of our attorneys.

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Co-owning property with someone else: The ups and downs

B2What is co-ownership?

Co-ownership is when one or more people jointly own the same property. In essence, it is when they legally share ownership without dividing the property into physical portions for their exclusive use. It is thus commonly referred to as co-ownership in undivided shares.

It is possible to agree that owners acquire the property in different shares; for instance, one person owns 70 percent and the other 30 percent of the single property. The different shares can be recorded and registered in the title deeds by the Deeds Office.

The benefits

On paper, it’s a great idea. For starters, the bond repayments and costs of maintaining the home are halved. However, there can be problems and although not every friendship or relationship is destined to disintegrate, there does often come a time when one of the parties involved wants to sell up and move on to bigger and better things.

The risks

If ownership is given to one or more purchasers, without stipulating in what shares they acquire the property, it is legally presumed that they acquired the property in equal shares.

The risks, the benefits and the obligations that flow from the property are shared in proportion to each person’s share of ownership in the property. For instance, one of the co-owners fails to contribute his share of the finances as initially agreed, resulting in creditors such as the bank or Body Corporate taking action to recover the shortfall.

Having an agreement

If two people own property together in undivided shares it is advisable to enter into an agreement which will regulate their rights and obligations if they should decide to go their own separate ways.

The practical difficulties that flow from the rights and duties of co-ownership are captured by the expression communio est mater rixarum or “co-ownership is the mother of disputes”. It is therefore important that, when the agreement the co-owners entered into does not help them solve disputes, certain remedies are available to them.

The agreement should address the following issues:

  1. In what proportion will the property be shared?
  2. Who has the sole right to occupy the property?
  3. Who will contribute what initial payments to acquire the property.
  4. Who will contribute what amounts to the ongoing future costs and finances.
  5. How the profits or losses will be split, should the property or a share be sold?
  6. The sale of one party’s share must be restricted or regulated.
  7. The right to draw funds out of the access bond must be regulated.
  8. A breakdown of the relationship between the parties.
  9. Death or incapacity of one of the parties.
  10. Dispute resolution options before issuing summons.
  11. Termination of the agreement.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

What are mutual wills?

B1The most general mutual will is that of a married couple. This does not mean, however, that the estates are joined and that the Testator and Testatrix have to make a joint decision about the distribution of their estates. Each party may still make independent decisions about the distribution of his/her estate within one will.

As a result, a mutual will is very popular among married couples, but the person who draws up the will, should take into consideration each party’s assets, liabilities and needs regarding inheritance to determine whether he/she should draw up separate wills or a mutual will, i.e. 2 separate wills within one document or one will which determines that merging of the respective or mutual wills should take place.

What mutual wills should contain

In the case of a mutual will there should be a description regarding the execution of the will should the spouses die simultaneously or within a short period, such as 30 days of each other. For argument’s sake, the Testator and Testatrix could be in a car accident. The testator dies and the Testatrix is in a critical condition, rendering her unable to draw up a new will; provision should be made in the will for such scenarios.

Legislation acknowledges the principle of freedom of bequeathment; each person therefore has the right to bequeath his/her assets according to his/her preference. Despite a Testator and Testatrix having a mutual will, one of the parties could decide, for whatever reason, to have another individual will drawn up which is dated later than the mutual will. The surviving spouse will not be able to insist that the mutual will be accepted as the last will and testament.

Amending a mutual will

One party does not need the other party’s permission to amend a mutual will. Each party has the right to draw up a new will at any time, without any obligation to inform the other party thereof. Should the mutual will turn out to be the last will of the deceased, it will become the valid will regarding the deceased, regardless of whether the surviving spouse had already drawn up another will.

Do the estates merge?

Merging of estates takes place when the estates of two people are joined into one upon the death of the first spouse, mainly with the aim of managing an asset in which both parties had an interest. Normally a limited right, such as a usufruct, should be created in terms of any of the assets in the estate to the benefit of the surviving spouse. Even with merging of estates the surviving party has the right to accept or reject the mutual will and the resulting merging of estate assets after the death of the first party. It boils down to the fact that, even where merging of estates is determined in the will, the mutual will does not have much value if the surviving party rejects the stipulations of the will after the death of the deceased party.

The way in which the creation of the merge is worded in a will is of extreme importance, as the wrong choice of words could have a major impact on the payment of policies outside the estate which should fall to the surviving party’s lot. The acceptance or rejection of a will in which a merge was created should also be considered carefully, as there are several implications, e.g. Transfer duty, Donations tax and Capital Gains Tax.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Who is liable for the damages in a car accident?

B2What will happen to my vehicle after I have been involved in a motor vehicle accident and who will be responsible for the damages? Over and above the emotional and economical tension it causes a person and his/her family, there will always be legal principles that apply.

What does the law say?

The most prominent legal field that will apply when a person is involved in a motor vehicle accident is the law of delict. The law of delict will play an important role in determining who will be liable for the damages, if any. If the damages were caused due to the intentional or negligent conduct or omission of somebody else (the third party), the third party would be liable for the damages the car owner suffered. The third party is, however, not without a few defences, but that falls outside the scope of this article.

Litigation

An important legal doctrine to be observed in litigation is the doctrine of subrogation as it applies in the law of indemnity insurance. It is an accepted principle of indemnity insurance law that when an insurer fully indemnifies an insured party in the case of loss caused by a third party, the insurer has a claim against the third party in the name of the insured. The policy behind this doctrine is to prevent the insured party from receiving double compensation from both the insurer and the third party.

Insurance claims

From a procedural point of view, the insurer obtains the right to institute legal proceedings against the third party in the name of the insured party if the insured party still has an unsatisfied claim against the third party. This principle allows the insurer to become dominus litis (master in the proceeding), but only in name and on behalf of the insured party. The insurer becomes entitled to conduct the proceedings in the name of the insured party, provided that the insurer has fully indemnified the insured party and has also indemnified the insured party against the risk of legal costs which may arise from the proceedings. The insurer has no independent claim against the third party, but simply enforces the claim of the insured party for the insurer’s own benefit.

Conclusion

In summary, the car owner will be able to hold the third party liable irrespective if he/she has insurance or not. If the car owner has insurance they will be able to claim the damages from the insurance. If he/she does, the insurance will be able to recover the loss in the name of the insurer from the third party. The relationship between the insured and the insurance is a contractual relationship and if any party fails to perform in accordance with the agreement, that party will be liable for breach of contract.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Me, my neighbour and that tree

B1The house was just perfect – the right neighbourhood, well-established garden, beautiful trees waving in the breeze with just the right amount of shade next to your swimming pool. And as the trees belong to your neighbour, no need for pruning, said the estate agent. You and your family loved the new home.

Autumn arrived. The leaves have changed and started falling, the swimming pool pump required repairs twice due to blockage and your Saturday golf has been replaced with clearing heaps of leaves. To add to that, a thunder storm ripped a branch off, which broke your electric fence and the wall. Problems with trees from adjacent gardens is an old story.

But what can you do about it?

To merely jump over the fence and prune, or worse, cut down the tree to your satisfaction will not only constitute trespassing but also malicious damage to your neighbour’s property. The courts have carefully considered the basis on which you can approach the court, now generally considered as “nuisance”.

Firstly, you will have to prove to the court that the inconvenience caused to you by your neighbour’s tree is more than you just being sensitive. The inconvenience caused must materially interfere with your ordinary physical comfort and your experience.

The standard that the court will use is that of a normal, reasonable person. The test of reasonableness will be applied, taking into account general norms acceptable to a particular society. Actual damage to your property is not a requirement.

The court will, however, also consider the nuisance, even if the tree(s) is actually causing damage, balancing this with your responsibility to tolerate the natural consequence of the ordinary use of the land. In other words, the court will consider the dispute and the decision will involve balancing the competing interests of you and your neighbour.

Should I care about the environment?

The judgement of Judge De Vos in Vogel vs Crewe and another 2003 (4) SA 50 (T) raised a further very important aspect – the environment.

In a world where trees and nature are considered all the more important for our well-being and that of the earth, careful consideration should be taken before a demand for the cutting down of a tree is granted. Judge De Vos noted that trees form an essential part of our human environment, not only giving us aesthetic pleasure but also being functional in providing shade, food and oxygen. And, like many other living things, trees require, in return for the pleasure provided, a certain amount of effort and tolerance.

With our increasing awareness of the importance of protecting our environment, we need to become more tolerant of the inevitable problems caused by the shrinking size of properties and the greater proximity of neighbours, and consequently, the neighbours’ trees.

Solving the problem peacefully

Before you sell your property and move to another neighbourhood altogether, consider a friendly discussion with your neighbour and his pruning company of choice, from YOUR side of the fence.

Explain to your neighbour which branches of which trees are problematic or show him the cause for your concern. And be willing to reach an agreement somewhere in the middle, taking the type of tree, its form of growth and the balance of the tree into consideration. It will not suffice to demand the removal of a large branch unbalancing the tree which will then fall over during the next storm taking down your wall.

If all your efforts, including friendly letters and e-mailed correspondence fall on deaf ears, you are allowed to prune all branches as from the point that it protrudes over the wall into your property. You are not allowed to lean over the wall to cut those branches at the neighbour’s side of the wall. You will also be responsible for removing the branches from your property after you have pruned the tree in this manner.

So relax and have a good, impartial look at that “offending” tree. Must that tree go? or can you tolerate it with a little pruning?

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Be careful what you write or say

B1Many people may not consider the things that they say in public or write online. This is often because of the right of freedom of expression. However, defamation can be a harsh reality for those who believe they can say what they want without consequences.

Typically, the law of defamation attempts to strike a balance between a plaintiff’s right to reputation, and a defendant’s right to freedom of expression – two rights that are recognised both at common law and in the Constitution. Defamation should be considered seriously when interacting with others through letters, e-mails and general discussions.

What if I think someone has defamed me?

You (the plaintiff) would first need to prove that a comment regarding you was publicised (to someone else) and secondly, that the comment was prima facie (obviously) defamatory. Once this has been determined the onus is on the other person (defendant) to prove that his/her conduct was not wrongful. In other words, that they did not intentionally try to defame you.

Wrongfulness is based on intent as opposed to negligence. Even where it remains that the comment was wrongful, the defendant might still have several defences like:

  1. Truth of the statement;
  1. That the comments are in public interest;
  1. That the comment was just an opinion and not given as a fact;
  1. That the comment was fair under the circumstances;
  1. That the comment was made under circumstances of qualified privilege, where the defendant had a duty and someone else had a duty to receive the comment.

But the comment was the truth?

The fact that the comment was the truth does not mean that it isn’t defamatory. The test to determine defamation is whether a reasonable person of normal intelligence would view it as defamatory. The defendant can succeed with his defence of fair comment and public interest if no element of maliciousness is involved. The plaintiff only has to prove that the comment was prima facie defamatory of his/her character and that it was publicised.

So if someone has stolen something, and has been convicted of the crime, it’s not defamatory to call them a thief. However, if someone has only been accused of theft and has not yet been convicted, calling them a thief of out spitefulness could be considered defamatory. This is simply because being called a thief could hurt their reputation and whether or not they stole something has not yet been determined to be true.

Publication can be to a specific person or within hearing distance of the general public and is material if heard by or publicised by the public in a book, postings on websites, or bulletin boards on the Internet. The onus is on the defendant to prove their defences. If there are two versions before a court it should decide on the most probable version under the circumstances.

In a democracy, forthright criticism, wild accusations and innuendos – often unfair and unfounded – are part and parcel of political activity. Right-thinking people in society generally do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material that would otherwise have been defamatory, to be no more than mere abuse. Courts allow wide latitude for political debate and politicians should not be over-hasty in complaining. Nonetheless, it is important to note that courts extend latitude, not immunity, and there are limits. A distinction must also be drawn between an unwarranted attack on the dignity and reputation of a politician and an attack on the person’s political views, policies and conduct. Courts have to give effect to the values of openness, transparency and accountability, yet protect dignity and privacy. It seems that the bounds are exceeded where improper motives or dishonourable conduct is imputed.

References:

  • Law of South Africa, Volume 8(1) – Second Edition Volume
  • Delta Motor Corporation (Pty) Ltd, vs Van der Merwe, 2004 (6) SA 185 (SCA)
  • Constitution of the Republic of SA, 1996 ss 10 and 16
  • National Media Ltd vs Bogoshi, 1998 4 All SA 347 (SCA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).