Alien and Invasive Plant regulations

Whilst most people believe the Jacaranda tree is indigenous to South Africa, it was in fact introduced to Pretoria in 1880 via import from Argentina.

Pretoria Jacaranda's

Well in order to determine precisely which plants in our properties are alien or invasive species, new regulations require that a purchaser is made aware of which plants on the property they are buying are listed as alien or invasive and made aware of the fact that certain plants need to re eradicated and others need to have a permit applied for.

We will keep you updated on contact details for inspection officers who can assist in these clearances and declarations, but in the meanwhile advise that all sale agreements be amended to include an example clause as follows:

"(a) In terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014, The Seller declares that to the best of his knowledge there are no Invasive Alien Species, as per the National register of alien and listed invasive species, present on the property.

* (b) In terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014, The Seller declares that the following listed alien invasive species are present on the property:

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

* (c) The Purchaser understands that he must apply for a permit with regards all Category 2 Alien Invasive Species in his own name in terms of the NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT 2004 (ACT NO. 10 OF 2004) ALIEN AND INVASIVE SPECIES REGULATIONS, 2014 once the property has been transferred.

(*Delete what is not applicable)

(d) The purchaser acknowledges that he has acquainted himself with the extent and nature of the property and accepts the property as such, including the vegetation on the property."

Once an inspection has been done by an expert, furnishing that to the purchaser will enable them to accurately determine which plants require application and which require removal.

Watch this space for updates in this field!!!

Surrogacy Agreements

The instances of couples, where one is infertile or in same-sex relationships, taking on a surrogate mother for their future child are growing in South Africa. It is important for the sake of the biological mother, the couple and the child that adequate protection exists for the respective interests of all. This has been recognised by the Government here.

 

Children's Act

 

Surrogate motherhood agreements are governed by the Children's Act 38 of 2005. Section 292 requires such an agreement to be in writing, signed by all parties and confirmed by the High Court.

 

Section 296 (1) (a) provides: "No artificial fertilisation of the surrogate mother make take place.. before the surrogate motherhood agreement is confirmed by the Court". Furthermore there is also section 303 (1) which provides: "No person may artificially fertilise a woman in the execution of a surrogate motherhood agreement or render assistance in such artificial fertilisation, unless that fertilisation is authorised by a court in terms of the provisions of the Act." In terms of section 305 (1) (b) read with 305 (6) - (7) carrying out an artificial fertilisation contrary to the provisions of the Act is a punishable offence. (Acknowledgement to de Rebus)

 

We can help

 

Clearly it is in the interests of all parties contemplating surrogacy that they get correct legal advice before taking the next step. We at Mc Naught and Company are able to provide such a service and help you get started with the family you have always wanted.

 

Franchises under the Consumer Protection Act

In practice the Consumer Protection Act, since implementation in 2011, has not had the effect of levelling the playing fields between franchisees and franchisors, according to Ben Whitelaw, writing in De Rebus the Attorneys' magazine this month.

Franchise agreements are generally entered into between two business entities who are informed and ought to take their agreement more serioulsy than a casual consumer purchasing goods in a store - the parties are able to contract and may agree to terms which favour the franchisor. The Consumer Protection Act in general protects consumers who may be uneducated and the law helps them more than the Act helps franchisees who may be sufferring from limits and procedures laid down by the franchisor.

Disclosure document

One area in which the franchisee is protected is the requirement that the franchisor furnish a prospective franchisee with a disclosure document - this sets out full information that would be material to the franchise and enables the prospective franchisee to make a more informed decision whether to go the franchise route or not.

Franchise agreements can be quite complex and require legal interpretation and it is always a wise move to consult your attorney for the correct legal advice before signing into one. Mc Naught and Company are on hand to guide you through this process and reduce the risks of taking on obligations you perhaps did not understand.  durbanskyye.co.za

Re-arranging debt

The National Credit Act, 2005, makes provision for people who are in debt to re-arrange their debt following a set plan of action and payments. Generally the debt can be "frozen" so that court cases regarding the debt come to a halt and a repayment plan is approved in which each creditor gets a pro-rata repayment over a period of time as set out in the repayment plan.

A recent court case heard by the Appeals court however referred a matter back to the Magistrates Court for a re-think after the lower court included car repayments in the repayment plan. This was a case involving the Motor Finance Corporation (Pty) Ltd who were successful in their appeal and required the Magistrate to consider the re-possession of the vehicle, payments for which had fallen into arreas, rather than including the motor vehicle payments in the new repayment plan. ie re-possess and sell the car you can't afford rather than think you can keep the car and pay the motor finance company over a longer period.

The lesson to be learned is to be careful when entering into debt or lending anyone money so that you can be sure the repayments in the future will be made. Durban Skyye blogspot

New Sectional Titles management

The Sectional Titles Schemes Management Act, 2011, has recently been promulgated. This extracts from the Sectional Titles Act all of the provisions relating to Body Corporate management and the new Act now provides for this.

In order to provide for some conformity in the way Body Corporates are managed whether first registered under the previous 1971 Act, or the later 1986 Act or in future, provisions are set out to make uniform rules applicable to these schemes, making the scope for variations to Rules smaller. Any proposed amendment to Rules also now needs to be approved by an Ombudsman appointed in terms of the Act. This will ensure that no rules that contravene the Act will be able to be passed at a meeting of a Body Corporate.

Provision is also made for the appointment of an Sectional Titles Schemes Management Advisory Council to advise the Government on continuing problems facing the industry and the need for changes to legislation affecting the sectional title property industry.

A copy of the Act can be downloaded free off our Skydrive. Follow the link.

Authentication of documents signed outside South Africa

If a document is to be signed outside of the Republic for use within the Republic, there are certain prescribed procedures to be followed for the document to be "authenticated" - this usually requires a trip to a Notary public and in some countries to our Embassy or Consulte for the appropriate official to attach an authentication certiciate before the document can be used here. The full rules are as follows:

Authentication of Documents

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AUTHENTICATION OF DOCUMENTS EXECUTED OUTSIDE THE REPUBLIC FOR USE WITHIN THE REPUBLIC (Rule 63)

In this rule, unless inconsistent with the context –

"document" means any deed contract, power of attorney, affidavit or other writing, but does not include an affidavit or solemn or attested declaration purporting to have been made before an officer prescribed by Section 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);

"Authentication" means, when applied to a document, the verification of any signature thereon.

1. Any document executed in any place outside the Republic shall be deemed to be sufficiently authenticated for the purpose of use in the Republic if it be duly authenticated at such foreign place by the signature and seal of office –
   
   (a) of the head of a South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a South African diplomatic, consular or trade office aboard (Para (a) substituted by GN R17663 of 13.12.1966); or
   
   (b) of a consul-general, consul, vice-counsul or consular agent of the United Kingdom or any person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom; or
   
   (c) of any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
   
   (d) of any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (a), (b) or (c) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorised to authenticate such document under the law of that foreign country (Para (d) substituted by GN R17663 of 13/12/1966.); or
   
   (e) of a notary public in the United Kingdom of Great Britain and Northern Ireland or in Zimbabawe, Lesotho, Botswana or Swaziland; or
   
   (f) of a commissioned officer of the South African Defence Force as defined in section 1 of the Defence Act, 1957 (Act 4 of 1957), in the case of a document executed by any person on active service
   
2. If any person authenticating a document in terms of subrule (s) has no seal of office, he shall certify thereon under his signature to that effect.
   
3. Notwithstanding anything in this rule contained, any court of law or public office may accept as sufficiently authenticated any document which is shown to the satisfaction of such court or the officer in charge of such public office, to have been actually signed by the person purporting to have signed such document.
   
4. No power of attorney, executed in Lesotho, Botswana or Swaziland, and intended as an authority to any person to take, defend or intervene in any legal proceedings in a magistrate's court within the Republic, shall require authentication: Provided that any such power of attorney shall appear to have been duly signed and the signature to have been attested by two competent witnesses.

National Credit Act

The National Credit Act has now been in force for a few years and it is time to reflect on the implications and effect of the Act. Everyone will remember the mortgage bonds and loans that were being thrown at the public before the Act was implemented. Over time, the value of not lending recklessly has been appreciated and our banks are far more cautious than previously in granting loans to people who may not be able realistically to afford the repayments.

Consumer Protection Act effective 1 April 2011

The Consumer Protection Act kicks in today, 1st April 2011 and it's no April Fools Joke.

In terms of the Act Consumers are given new wide powers to return certain goods purchased, to demand good service and to terminate fixed contracts such as cellphone contracts, leases and and property sales mandate earlier than the intended termination date.

DOWNLOAD COMPLIANCE DOCUMENTS NOW

You can now download, by clicking on the hightlighted word download, our guide to the implementation of the Act with regard to leases, as well as our Seminar notes for the property seminars we conducted earlier this month for real estate agents and those in the property industry.  Also available are compliance documents which can be attached to existing leases or sole selling mandates to ensure compliance with the Act. on request by email to adlawza@msn.com with your own lease or mandate in word format, we can integrate our recommended changes into your own documents so that a separate addendum will not be necessary.

All documents for download are also available by clicking on the download picture on the side-bar to the right.

Transfer of properties from cc

The tax exemption deadline for transferring properties registered in the name of a close corporation, company or trust to the members of the entity has been extended to this December 2011.

The benefit of transferring a property to the member is that the transfer would be free of transfer duty, capital gains tax, secondary tax on companies and income tax in terms of Para 51 of the 8th Schedule of the Income Tax Act following a recent amendment to the Income Tax Act and subject to the deadline mentioned above.

An example is a property owned by a cc which is being sold for R900 000,00. If the property was to be sold out of the cc, the cc would make a profit, which profits are taxed as well as the capital gain - the difference between the selling price and the cost price. In the example our office is handling this tax amounts to R137 454,00.

If the exemption is used and the property is first transferred to the members and then sold (transfer can be done simultaneously) the tax payabe is R6256 - a considerable difference.

So if you own a property in a corporation, company or trust, discuss with us the best way to save taxes and take action now before the exemption falls away.