Legal Matters – October 2021

SELLING YOUR PROPERTY: WHY, HOW AND WHEN TO CHOOSE YOUR OWN CONVEYANCER 

“A great deal is at stake in the transfer of fixed property. It is generally the largest single asset that a person owns and the transaction for the purchase or sale of a fixed property is probably the most important contract undertaken by individuals” (Law Society of South Africa) 

For many of us, our home is our most important asset so when it comes time for us to sell, we do everything possible to ensure that your interests are fully protected, that the sale goes through quickly and smoothly, and that payment is made without unnecessary delay. 

Appointing the right conveyancer is key. 

Why do I need a conveyancing attorney? 

Legal ownership in immovable or fixed property (land and permanent attachments such as buildings) can only be transferred from seller to buyer through a formal registration process in the Deeds Office. This is carried out by attorneys who have been admitted to practice as conveyancers. 

Who appoints the conveyancer, and how?

 As the seller, it is your right to choose which conveyancer will carry out the transfer. The agreement of sale, also referred to as an Offer to Purchase or Deed of Sale, should contain a clause specifying the conveyancing attorney. Make sure you fill in your chosen attorney’s name and details in the space provided, and do not allow anyone else to dictate to you who to use. You may occasionally come across an offeror/buyer wanting to appoint their own attorney, perhaps with the argument that because they are paying the transfer costs, which include the conveyancer’s fees, the choice should be theirs. But the fact is that you carry more risk, and there is nothing to stop the buyer from employing another attorney to monitor the transfer on their behalf if they really feel this necessary. 

How to choose the right conveyancer 

You need to appoint someone you can trust to handle the process with the utmost professionalism.

  • Speed will be important to you, and whilst a certain amount of delay is inevitable, a pro-active and committed conveyancer will keep delays to a minimum. 
  • Communication: Progress updates should be regular and timely, keeping you in the loop at every step of the process. 
  • Attention to detail is also vital. Conveyancing is a specialised field, calling for meticulous compliance with a host of rules and regulations. Moreover, every sale agreement will be different, and its precise terms and conditions must be complied with. 
  • Cybersecurity has become a major issue in recent years, particularly around the question of email integrity. Knowing that your chosen firm of attorneys has security protocols in place is critical to resting easy that the purchase price will indeed end up in your account. 

The need for scrupulous integrity goes without saying – a lot of your money will be at stake here. 

When should I bring my attorney into the sale process? 

When you first decide to sell, you will find it invaluable to have your attorney’s advice on how to go about it, whether you should speak to an estate agency, how best to market your property, what pitfalls to avoid and so on. When it comes to the agreement of sale itself, a myriad of things can go wrong if the contract isn’t professionally drawn to be clear, concise, legally enforceable and configured to protect your interests. So if you are presented with an offer or agreement drawn by someone else, take legal advice before you agree to anything. 

DON’T LOSE YOUR SOUTH AFRICAN CITIZENSHIP WHEN YOU APPLY FOR ANOTHER 

“… it cannot be said as the applicant suggests that the loss of citizenship takes place without notice and automatically as the citizen in that position has proper notice through the structure of the section of both the opportunity to seek consent to hold dual citizenship and the consequences of acquiring a second citizenship without obtaining such permission. It therefore is not a secret provision but one that every citizen who voluntarily seeks to acquire another citizenship should ordinarily acquaint themselves with” (extract from judgment below

A recent High Court judgment has confirmed that you will lose your South African citizenship if you apply for citizenship of any other country without prior Ministerial permission. It is irrelevant whether you are South African by birth or not. It is also irrelevant why you want to acquire dual citizenship – perhaps you are living/working overseas, perhaps you want a second passport just to make travelling easier, or perhaps you have financial reasons. 

How and why you lose your South African citizenship 

Dual citizenship itself is allowed, but our Citizenship Act provides that if by some voluntary and formal act you acquire citizenship or nationality of another country, you are deprived of your South African citizenship. Home Affairs is interpreting that to mean that you have voluntarily given up your South African citizenship by your own formal act of applying for foreign citizenship. This loss of citizenship does not apply to: 

  • Minors (under 18 years of age) and 
  • Acquisition of another country’s citizenship by marriage 

How to retain your South African citizenship 

The good news is that you can apply through Home Affairs for authority to retain your SA citizenship, but your application must be approved before you acquire your second citizenship. 

The bad news is that it takes time, so don’t leave it to the last minute. Even before the pandemic, processing time was given as 3 to 6 months and media reports suggest that delays are now much longer, although perhaps the publicity surrounding the High Court case in question will assist in improving the situation. If you are overseas, you should find the necessary forms and instructions on your local SA Embassy/Mission/Consulate website. 

You’ve lost your citizenship – what now? 

This is very much second prize, but you can still apply to get your citizenship back. 

  • If you were a citizen by birth or descent you can apply for reinstatement only if you have returned to, or are living in, South Africa permanently. 
  • If you were a citizen by naturalisation, you must re-apply for permanent residence or apply for exemption thereof, before you can be considered for resumption of citizenship. 
  • If all else fails, consider taking the legal route. As we discuss below, the High Court has recently held that the relevant provisions of the Citizenship Act pass Constitutional muster, but there is talk of a possible appeal. 

High Court: Choose how important your citizenship is to you, and know the law 

There has always been speculation that this section of the Citizenship Act could be held to be unconstitutional. However, in rejecting a recent application to that effect by the Democratic Alliance, the High Court has confirmed that it passes constitutional muster and is not irrational. The High Court’s reasoning was that “It is ultimately a matter of personal choice what weight each of us attaches to the idea of our citizenship”, and that this is not a case of automatic loss of citizenship without notice but rather it “is really about personal and individual choices people make about their future and often choices come with consequences.

The section in question, held the Court, is “not a secret provision but one that every citizen who voluntarily seeks to acquire another citizenship should ordinarily acquaint themselves with … while it may be arguable that citizens cannot be expected to know every feature of the law, those citizens involved in migration and relocation to other countries with the possibility of acquiring citizenship there must surely be expected to acquaint themselves with the law in that area of activity they are involved in.” There is talk of an appeal but for now at least, if you have already lost your citizenship your options are limited to those set out above. Although you can travel freely around the world on your second passport, you must enter and depart from South Africa on your valid SA passport. 

WALKING THE “COMPULSORY COVID-19 JAB” TIGHTROPE 

“Employers should find a reasonable resolution that accommodates all parties where employees refuse to be vaccinated for medical and constitutional grounds” 

(Ministry of Employment and Labour) As the Covid-19 pandemic continues to wreak havoc around the world, an increasing number of businesses find themselves walking a tightrope between their obligations to protect the public and provide a safe and healthy workplace, and on the other hand to respect the individual constitutional rights of employees to make their own choices in matters of bodily and psychological integrity, religion, belief and opinion. 

These deeply conflicting rights and obligations have left employers asking themselves questions like: “Must we insist on our employees having the vaccination to protect their colleagues, our visitors, our customers and the public at large?” and “If so, can we actually force unwilling employees to get jabbed or are we in for unfair practice or wrongful dismissal claims?” 

The Minister’s Amended Consolidated Direction 

On 11 June 2021 the Minister of Employment and Labour issued an Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces under the National Disaster Regulations in an attempt to address those questions. The Direction is long, detailed and complex, setting out a host of minimum measure requirements for workplace safety during the pandemic, so specific professional advice is essential here. An official guideline for employers wanting to make vaccination compulsory or partially compulsory is now available. At a minimum, you need to comply with all these specified obligations: 

Undertake a risk assessment 

The risk assessment, which was supposed to have been completed by 2 July 2021, was to determine: 

  • whether vaccinations were to be made mandatory considering the “operational requirements of the workplace” and if so 
  • who was to be compulsorily vaccinated, taking into account the risk of transmission to employees through their work and their risk for severe Covid-19 disease or death due to their age or comorbidities. 

In assessing whether or not your particular workplace needs a mandatory vaccination policy, include factors such as the ongoing requirement to enable employees to work from home where possible, the nature of the work in question, whether adequate ventilation is possible, whether adequate social distancing measures are possible and so on – the list is endless. With regards to the 2 July deadline, it seems likely that many employers missed it. If you are in that boat, what should you do now? There is no clear guidance on that, but the consensus of expert opinion seems to be that you should still comply, as soon as possible. 

Develop or adjust a vaccination and protective measures plan 

Based on the risk assessment, this plan must outline both what protective measures you have in place, and what vaccination measures you intend to implement. 

Consult on the risk assessment and plan 

Consultation must be with any representative trade union and any health and safety committee or representative. Together with some rational and valid concerns, there is an avalanche of fake news around Covid-19 and vaccinations. Inform your employees fully of their rights, help them to distinguish fact from fake, address their individual fears and concerns, explain the benefits of your plan to everyone, and strive for consensus. 

Make the plan available 

The plan must be available to an Occupational Health and Safety Act inspector and to the person/s listed above. 

Other requirements and factors 

No list of this nature can ever be comprehensive but consider factors such as paid time off and transport to vaccination sites, sick leave for employees who suffer side-effects, counselling for vaccine hesitant employees and the like. There are also defined procedures to be followed when employees raise medical or ethical objections to being vaccinated. 

The bottom line 

There is talk of workplace vaccination being made compulsory either across the board or in certain sectors, whilst an increasing number of large employers are already implementing compulsory vaccination policies on the basis of legal advice received. There is also much speculation that our courts will support dismissal of employees who refuse vaccination in appropriate cases, and there is even a report of a High Court Judge insisting on either proofs of vaccination or negative PCR tests for the general well-being of all parties in attendance at court. 

Bear in mind, however, that every situation, every workplace, and every employee is unique – and with the high stakes involved, tread with extreme care and only after taking professional advice. 

According to Joubert Galpin Searle’s Labour Director, Leon van Staden, “Employers will have to balance their rights with the rights of employees in order to make COVID-19 vaccinations mandatory. This will involve a consultation process depending on the employees’ attitude. It is suggested that employers first attempt to reach an agreement with employees before they commence with a process to make the vaccines mandatory.” For more information about vaccinations in the workplace, please contact Rowan Willcock or Leon van Staden on +27 41 396 9226 / 3. 

WHAT SARS SAYS ABOUT CRYPTO ASSETS AND TAX “

The future of money is digital currency” (Bill Gates) 

If you are thinking of buying, or have bought, any crypto asset such as a cryptocurrency like Bitcoin, Ethereum, Polkadot, Solana, or any of the many other crypto currencies, be aware of the tax implications. 

As a start, read the new SARS webpage “Crypto Assets and Tax” here, first published on 27 August 2021 and providing guidance on these questions (at date of writing – expect this webpage to evolve!): 

  • What is it? 
  • How did we get here? 
  • Do I need to pay tax on crypto assets? 
  • How will it work? (With an example of the ITR12 Income Tax Return for the 2020/21 tax year) 
  • How is SARS tracing crypto asset transactions? 

There are still grey areas here – and many pitfalls, so be sure to take professional advice. 

Innis Du Preez
Director 

Qualifications

  • B Proc
  • Adv Diploma Labour Law

Focus Areas

  • Corporate Recoveries
  • Bank Foreclosures
  • Vehicle Asset Finance Recoveries
  • Insurance Recoveries and Litigation
  • Liquidations

For references or notable cases, please contact Innis directly.

Shakira Ahmed
Senior Associate

Qualifications

  • LLB (Nelson Mandela University)
  • Conveyancer
  • Notary
  • Advanced Certificate in Insolvency

Focus Areas

  • Equality Court Disputes
  • Evictions – Commercial/Residential
  • High Court Delictual Litigation
  • Insurance Law
  • Notarial and Surety Bonds
  • Notarial Law – Antenuptial Contracts
  • Personal Injury Law
  • Professional Indemnity Insurance Defence Law
  • Professional Negligence Law
  • Property Law
  • Land Disputes
  • Liquor Law
  • Liquidations and Insolvency
  • Deceased Estate Litigation
  • Correspondent Litigation
  • Immigration Law

For references or notable cases, please contact Shakira directly.

Qualifications

  • LL B (University of Pretoria)
  • Notary

Focus Areas

  • Civil Law
  • Medical Law
  • Mediation
  • Evictions – Commercial/Residential
  • High Court Delictual Litigation
  • Insurance Law
  • Medical Defence Law
  • Notarial Law
  • Personal Injury Law
  • Professional Indemnity Insurance Defence Law
  • Professional Negligence Law
  • Property Law
  • Deceased Estate Litigation
  • Correspondent Litigation

For references or notable cases, please contact Natasha directly.

Hennie van Eck
Consulting Director

Qualifications

  • BProc

Focus Areas

  • Civil Law
  • Medical Law
  • Mediation
  • High Court Delictual Litigation
  • Insurance Law
  • Medical Defence Law
  • Personal Injury Law
  • Professional Indemnity Insurance Defence Law
  • Professional Negligence Law
  • Continued Professional Development Education (Seminars/Workshops)

For references or notable cases, please contact Hennie directly.

Leonelle Conradie
Associate 

Qualifications

  • BA Law
  • LLB

Focus Areas

  • Drafting Employment Contracts and Policy Documents
  • Training of internal processes
  • Employment Law Compliance Audits
  • Chairing and prosecuting Internal Disciplinary Hearings
  • Retrenchments
  • Contractual Disputes
  • Restraint of Trade disputes
  • Arbitrations (CCMA & Bargaining Councils)
  • Labour Court appearances

For references or notable cases, please contact Leonelle directly.

Qualifications

  • LLB
  • Master’s Degree (Labour Law)
  • Post graduate Diploma (Labour Law)

Focus Areas

  • Review Applications of arbitration awards
  • Arbitrations (CCMA & Bargaining Councils)
  • Disciplinary investigations and subsequent prosecution
  • Employee Relations
  • Drafting Employment Contracts and Policy Documents
  • Chairing Internal Disciplinary Hearings
  • Corporate Restructuring (Retrenchments)
  • Employment Law Compliance Audits
  • Exemption Applications
  • Contractual Disputes
  • Commercial employment transactions
  • Restraint of Trade disputes

For references or notable cases, please contact Marco directly.

Leon van Staden
Director

Qualifications

  • BJuris
  • LLB
  • LLM (Labour)

Focus Areas

  • Employment Law for private companies and public entities
  • Municipal Law
  • Labour litigation- CCMA, Bargaining Councils
  • Labour Court
  • Labour Appeal Court
  • Constitutional Court
  • Review Applications
  • Collective Bargaining
  • Strike Interdicts
  • Advice on all employment related aspects- restructuring, employment contracts & policies
  • Chairing and prosecuting in disciplinary hearings

For references or notable cases, please contact Leon directly.

Rowan Willcock
Director

Qualifications

  • BJuris
  • LLB
  • Agricultural Diploma

Focus Areas

  • Labour & Employment Law
  • Industrial dispute guidance
  • Labour Court appearances
  • CCMA representation
  • Arbitrations
  • Drafting contracts of employment, collective agreements, and related agreements.
  • Workshops and training.
  • Strategic advice during restructuring exercises.
  • Chairing internal enquiries.
  • Mediation services

For references or notable cases, please contact Rowan directly.

Teresa Heasley
Senior Associate

Qualifications

B Proc
Conveyancer

Focus Areas

  • Deceased Estates
  • Conveyancing

Notable projects / judgements

For references or notable cases, please contact Teresa directly.

Qualifications

  • B Proc
  • Conveyancer
  • Notary Public

Focus Areas

  • Property Law
  • Conveyancing
  • Notarial Law
  • Contract Law pertaining to Property (Freehold, Sectional Title and Developments)
  • Registration of Mortgage and Notarial Bonds

For references or notable cases, please contact Dubennette directly.

Qualifications

  • LLB

Focus Areas

  • Corporate and Commercial litigation and general legal advice
  • Contract Law
  • Immigration Law
  • Administrative Law
  • Trust Law
  • Magistrates Court & High Court Litigation

For references or notable cases, please contact Nathan directly.

Phiwokuhle Ncanywa
Director

Qualifications

  • LLB (Nelson Mandela University)

Focus Areas

  • Corporate and Commercial litigation and general legal advice
  • Administrative Law Litigation
  • Municipal Law
  • Environmental Law
  • Information Law
  • Spatial Planning and Land Use Law
  • Property law
  • Land Dispute Matters
  • Procurement Law
  • Construction Law

For references or notable cases, please contact Phiwokuhle directly.

Qualifications

  • LLB (Fort Hare)
  • Notary

Focus Areas

  • Magistrates Court Litigation
  • High Court Litigation
  • Corporate and Commercial litigation and general legal advice
  • Contract Law
  • Insolvency Law
  • Construction Disputes
  • Recoveries
  • Personal Injury Law
  • Ante Nuptial Contracts
  • Notarial Services

For references or notable cases, please contact Loren directly.

Qualifications

  • B Juris
  • Baccalareus Legum
  • Notary

Focus Areas

  • Corporate and Commercial arbitrations, litigation and general legal advice
  • Contract Law
  • Municipal Law
  • Trust Law
  • Liquor Law
  • Environmental Law
  • Administrative Law
  • Administrative Law Litigation
  • Corporate governance compliance and training
  • Energy Law

For references or notable cases, please contact Cindy directly.

Warren Parker
Managing Director

Qualifications

  • BComm
  • LLB
  • Notary
  • Conveyancer
  • Certificate in International
  • Trade
  • H Dip Tax

Focus Areas

  • Corporate and Commercial arbitrations, litigation and general legal advice
  • Contract Law
  • Tax Law
  • Construction Law
  • Municipal Law
  • Public & Procurement Law
  • Administrative Law
  • Constitutional Law

For references or notable cases, please contact Warren directly.