NOISY NEIGHBOURS – COURTS TO THE RESCUE
You buy a house in an area zoned for agricultural use, dreaming of a quiet and peaceful life ‘far from the madding crowd’. Then the neighbours decide to turn their farm into a conference and wedding venue, and your rural peace and quiet is shattered by boisterous events featuring loud music, singing, shouting, and hooting.
You go to court, and obtain an order restraining the neighbours from organising or hosting any “wedding functions, receptions, conferences and/or similar noise generating events”. But to no avail - the neighbours carry on arranging events in breach of the court order.
Your remedy
Your remedy is another approach to the courts which will, as illustrated in a recent High Court case, brook no nonsense in penalising any deliberate and intentional violation of court orders. The offenders in the case in question were not only fined R20,000 or 6 months’ imprisonment (with a further 6 months’ imprisonment conditionally suspended for 3 years), but were ordered to pay their long-suffering neighbour’s legal costs on the punitive attorney and client scale.
Note that most municipalities can also assist with nuisance neighbours via noise by-laws. But don't suffer in silence if you get no joy from local law enforcement – go to court!
“WATER, WATER, EVERYWHERE”: WHEN CAN COUNCIL CUT YOU OFF?
Water, water, everywhere, nor any drop to drink.”
(The Rime of the Ancient Mariner, Coleridge)
What are your rights when you are fighting with your local municipality over a municipal services account, and they cut off your water?
The Supreme Court of Appeal recently clarified the legal principles applicable –
Water supply is not just a personal right in terms of your supply contract with the municipal supplier – it
is also underpinned by statutory and basic Constitutional rights.
Any “limitation or discontinuation” of water services must therefore be “fair and equitable”.
In the case in question, a caravan park owner disputed a claim by the municipality for R182,000 arrears on a water account. Nonetheless the municipality demanded full payment and then – relying on its water and debt collection by-laws - cut off the park’s water supply when the owner failed to pay.
The park owner rushed off to the local magistrate’s court and obtained an order directing the municipality to reconnect the water supply. This order was upheld twice on appeal, the Supreme Court of Appeal ultimately holding that in light of the municipality’s decision to summarily disconnect the water supply without first following its own dispute resolution procedures, the disconnection was not “fair and equitable”.
Note that a dispute as to arrears will notabsolve you from the duty to pay for normal ongoing monthly consumption, and that the outcome of this particular case would in all likelihood have gone Council’s way had it followed its own dispute resolution procedures properly before disconnection. Take advice in doubt!
BUYING A BUSINESS - BEWARE THE TAX IMPLICATIONS!
Business sale agreements often provide for allocation of the purchase price between the various assets of the business – so much for goodwill, so much for stock, so much for fixed assets etc. Make sure that the allocation is both made and recorded correctly – not only does any imprecision risk litigation in the event of a dispute, but you could also face asubstantial tax downside.
The buyer who lost an R82m tax deduction – don't let it happen to you!
A recent Supreme Court of Appeal case illustrates the tax risk. The agreement of sale of a business had allocated the purchase price between six categories of asset, with specific maximum amounts to be allocated to “Immovable Property”, “Other Fixed Assets” and “Trademarks”. But no maximum amounts were specified for stock in trade or debtors, leading to doubt as to what had actually been agreed.
The purchaser then claimed a tax deduction of R103m. Its argument was that the stock had been acquired for “no consideration” and that therefore its opening tax value was deemed to be the “current market price” i.e. R103m. SARS however contended that the stock had in fact been acquired for a consideration of only R21m, which was accordingly its actual cost price to the purchaser, and therefore its “opening value” for tax purposes.
Both the Tax Court and the SCA ultimately agreed with SARS in its interpretation of the allocation provisions in the sales agreement, so the purchaser is down R82m in lost deductions.
Don't let that happen to you – have the sale agreement professionally drawn to accurately reflect the agreed price allocation!
ARREST FOR DRUNK DRIVING – WHEN IS IT LEGAL?
Anyone failing a breathalyser or blood test at a roadblock can expect to be arrested on a charge of driving under the influence of alcohol – and you can’t refuse to be tested.
But, per a recent Supreme Court of Appeal decision, in the absence of such a test the police cannot lawfully arrest a motorist if the arresting officer’s suspicion is based on nothing more than “the mere fact that he smelt lightly of alcohol”.
The arrest and the detention
An off-duty police officer was arrested by his colleagues on suspicion of driving under the influence of intoxicating liquor. He had flagged the other officers down to ask for assistance after his vehicle veered off the road and fell into a ditch on a dangerous section of road at night.
He was detained in police cells for four and a half hours in “inhumane and horrid” conditions before a blood test confirmed that he was in fact below the legal limit. The charge was accordingly withdrawn.
Arrest without warrant – what’s required?
The Court held that where an arrest is carried out without a warrant, the arresting officer must prove the lawfulness of the arrest, specifically: -
The arresting officer must be a “peace officer”. The term includes SAPS members, magistrates, justices, correctional officials, and other officials appointed as such for specific purposes or areas (such as municipal police officials, inspectors appointed by the National Consumer Commission, etc);
The arresting officer must entertain a “suspicion”;
The suspicion must be that the suspect committed any of a specified range of “serious” offences; and
The suspicion must be based on reasonable grounds - the legal test being “whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a [specified] offence”.
The damages award
The Court here decided that the arresting officer’s suspicion – being founded only on the fact that the arrestee smelt of alcohol and that his vehicle had left the road and landed in a ditch - was not based on reasonable grounds. There was no evidence that he was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot - all, as the Court put it, “well-known indications of a person who is under the influence of alcohol”. The Court accordingly confirmed a damages award to the arrestee of R50,000 for unlawful arrest and detention.
Note: In another similar case recently before the High Court, a tee totalling pastor was awarded R70,000 damages after being arrested, detained in a police cell for 5 hours, and kept in suspense for 6 months before a blood test proved that he had consumed no alcohol.
CHILDREN OF SAME-SEX RELATIONSHIPS: A GROUND-BREAKING NEW CASE
The facts
A child, conceived by artificial insemination, was born to a same-sex couple during their relationship. No marriage was ever registered. After the relationship ended, the biological mother sought to stop her ex-partner having contact with the child – the latter immediately went to court, seeking an order of full parental rights and responsibilities.
The law
The Court held that –
The applicant, because she had no biological link to the child, had no automatic parental responsibilities and rights of the sort that would apply to a biological parent.
Nor, in the absence of a marriage, did she have the automatic rights and responsibilities applying to a spouse in a case of artificial insemination.
As the parties had no “parental responsibilities and rights agreement” in place, the applicant’s only recourse was to ask a court to grant her whatever rights and responsibilities it considers appropriate. (Note: any “agreement” as referred to here is valid only if properly registered or confirmed by court order.)
Take advice!
Ultimately our courts will always look after the best interests of the child in any dispute, and, on the facts of this particular case, the applicant was granted (as a co-holder with the biological mother) full parental rights and responsibilities.
But don't leave it open to dispute and doubt - take legal advice before entering into any long-term relationship (same-sex or not) particularly where there are children involved!
THE MAY WEBSITE: “YOUR BUSINESS”
There’s a wealth of advice available to small businesses online – much of it specifically for us South Africans.
See for example http://bizmag.co.za with its free articles (many others available in its subscription magazine “Your Business”) on topics such as -
Startup
Franchising
Funding
Growth
Management
Tips
Events
Biz Services
Hot Opportunitie
Have a Great June!
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