ARTICLES

The Best Defence Against House Robberies in South Africa

Courtesy of Furion Security, this document produced by Professor Rudolph Zinn and Brigadier Piet Byleveld, sheds light on how criminals plan and execute a house robbery, and what can be done to prevent this happening to you.
Extracts from a Residential Robbery Research
Dr. Zinn’s findings from his research are as follows:

 

  • Eight out of 10 residential robberies are committed with the help of information from maids, gardeners and former employees.
  • Robbers will monitor the home for as long as two weeks.
  • Gangs research armed response firms’ response times.
  • Most attacks occur between 7pm and midnight as people are relaxed, cooking or watching TV.
  • 97% of robbers are armed.
  • On average an armed robbery gang has four members.
  • 50% of residential robberies in SA take place in Gauteng
  • It is a complete myth that only white people are victims of robberies – anyone displaying any form of wealth (double story homes, expensive jewellery and fancy cars) is a target.
  • The average age of a house robber is between 19 and 26 years.
  • An average of 30% of all house robbers have either committed murder, or won’t hesitate to commit murder.
  • Only 17% of house robbers are foreigners.
  • Of all arrested robbers, 90% had no matric or were unemployed. The 10% who had been employed, gave up their jobs when confirming how much they could “earn” from a robbery.
  • Most victims or targets are affluent persons who openlydisplay their wealth, e.g. expensive cars, jewellery, up market homes.
  • Most attacks occur between 19:00 and midnight as people are relaxed, busy cooking or watching TV, and the security systems and beams are not activated. But robberies continue until 04:00 in the morning.
  • The average robber commits 103 robberies over seven years before being caught.
  • Most attackers’ homes or bases are a 10 to 30 minute drive from the target address.
  • Women are more often tortured or hurt during house robberies.
  • The conviction rate for house robberies in South Africa is only 7.67%. In the USA it is 53%.

 

Robbers are NOT deterred by the following:

  • Alarms and armed reaction services.

 

Security measures that robbers DO consider to be deterrents:

  • Electric fences
  • Detection beams
  • CCTV
  • Small dogs that sleep inside the house – robbers consider this to be the biggest deterrent of all.

 

Recommendations that came from the research:

  • Make sure all shrubs and trees are trimmed back so they do not allow a burglar to conceal himself while attempting to open a window or door. If possible, plant bushes with prickly thorns around these locations. They are a cheap deterrent.
  • Don’t stop your security awareness at the outside walls of your house. Your yard areas (if any) also deserve attention. In general, don’t leave anything around the yard that might help a burglar get into your house. Ladders, stackable boxes or any garden tools should be put away, preferably in a locked cabinet. Many burglars have used the property owner’s own tools to break into a home. Don’t place outdoor furniture tables nearby the house. These could become an easy stepladder to the roof. To discourage potential climbers, spread grease on any metal drainpipes if they are close to windows. Use Vaseline or clear automotive grease, depending on the color of the pipe (or replace them with plastic pipe).  Yes, criminals do climb up drainpipes. Think about it, most second story windows are left un-secure and make a house easy to gain entry to.
  • A barking dog, changing your daily routine and the presence of closed-circuit TV (CCTV) could make your home a less attractive target to criminals.
  • Given that robbers tend to case-out a property and the residents’ comings and goings for as long as two weeks, it is highly-recommended that you deviate from your usual routine regularly. Change your patterns every week by leaving and returning home at different times, using different routes and visiting different shops to what you typically do.
  • In South Africa, the importance of employing extreme caution when hiring domestic workers and other service providers cannot be underestimated. Be careful who you let into your home.

Practical Suggestions on Staying Safe

Jarrod Nel of Furion Security advises that as we approach the ‘silly’ season, with most of us looking forward to a well-deserved break, we unfortunately tend to forget about matters such as the dramatic increase in crime over this period; we are distracted by the festivities and the excitement of going on holiday. Here is a practical reminder of what we should be cognisant of when engaging in certain activities.

 

    • An all-time favourite – shopping! As far as possible remain vigilant when shopping, and be cognisant of what you’re wearing, such as expensive watches and jewellery. These items of adornment will always attract attention, particularly over the holiday period. Make a habit of placing these items in the boot of your vehicle before entering shopping malls if you have forgotten to leave them at home.
    • When returning home, regularly glance in your rear view mirror to ensure that you’re not being followed. If anything looks suspicious, drive past the entrance and rather call your security company or the armed response. Advise them of your location and request to be escorted inside. Failing that, drive to your local police station and request assistance.
    • Furion management have attended CFP meetings at the Norwood SAPS, and been informed of a dramatic increase in house-breakings and vehicle hijackings in the suburb of Houghton Estate and surrounding areas. Speak to the security company guarding your estate and find out what is happening in your area.
    • Never leave valuables in your vehicle, in plain sight of anyone walking by.
    • It goes without saying that children must never be left unattended in vehicles, even if you think it will only be for a short time, while you pop into a convenience store.
    • If you feel that carrying a firearm is necessary, please make sure it’s either on your person or locked away in a safe. The theft of firearms is reported to be on the increase.
    • Employment of temporary staff over this holiday period is common, since permanent staff members go on leave. Please exercise the utmost caution when engaging anyone new and conduct reference checks.
    • It is advisable to let a relative or friend know for which period you will be away, so that they can look out for anything untoward if driving past your property, or raise the alarm should you not return home.
    • Passports and other valuable documents should be locked away safely when arriving at your destination, and when not in use.
    • When leaving a bank after making a cash withdrawal, make certain you’re not being followed. Exercise extreme caution when using an ATM – particularly one that may be in a fairly remote location.
    • If you employ staff, labourers or sub-contractors who are not in possession of a South African bank account, consider another method of payment other than paying them in cash on the property.
    • When disposing of refuse please be cognisant of what is being discarded. The new credit/debit/ATM access cards are usually affixed to paper that contains personal details i.e. ID numbers, addresses, etc. Utility bills, telephone accounts and bank statements all have valuable information printed on them. The scrummaging by recycling people through our refuse may, at first blush, appear innocent, even innovative, but it is also known that a valuable piece of information may end up being the ‘catch of the day’.

 

Jarrod Nel of Furion Security can be contacted at jarrodenel@furionsecurity.co.za / www.furionsecurity.co.za

When to Obtain Comparative Quotations

What is the correct protocol to follow when obtaining quotes, and how many quotes should be obtained, to ensure that sound governance is adhered to by the Board of Trustees or Directors of the scheme?
A quotation (different to an estimate) is defined as a written statement of how much money a particular job will cost to do. While it is necessary for budgeting purposes and for monthly financial management to know what a specific job or project will cost in advance, by way of obtaining a written quotation, the current trend of automatically insisting on multiple quotations for comparative purposes, is not always necessary; it can in fact be obstructive and costly.

 

The deciding factor for when to obtain comparative quotes should not always hinge on the amount of the job / project / capital expenditure in play. To determine that amounts less than say R5000.00 do not require comparative quotes is too prescriptive. R4900.00 could be a large sum for a certain budget, or the task in hand has not been put out to tender for years, and the same contractor that has been attending to the task year in and year out, has slowly built in added costs that shouldn’t be there.

 

The rule of thumb generally is that the more costly the item / project, the more quotes that should be obtained. It is easy to advise one to apply common sense to this approach, but we all know that common sense is not so common, so here are some guidelines that we find useful:

    1. There should be someone that you know who is familiar with market related costs for services, items and jobs. Ask them.
    1. With that estimate in mind, factor in the time it will take to initiate the process for multiple quotes as opposed to going directly to a recommended source – factor in meeting the contractor/s on site or meeting with the service provider/s if that is a pre requisite to quoting.
    1. If the decision is to adopt the multiple quotation approach, enquire if those quotations are going to incur a fee – many companies today no longer prepare quotations for free, especially when they need to send someone to meet with you / on site first.
    1. If there are costs involved, possibly only approach 2 companies initially.
    1. If there is a vast price difference in those 2 quotes, a third quotation can be obtained (this is where the original 3-quote rule came into play). The third quote should align with one of the two quotes in hand, and that should assist with the decision making process.
    1. If the job or service requires a specialist, do your homework first. The fewer specialists or companies offering that service, the less likely it will be to obtain multiple quotations.
    1. If there is a regular service that is provided, we suggest obtaining comparative quotations every 2 years. An example of such services is the annual servicing of fire equipment.
    1. Trust your instinct – if something doesn’t feel right, obtain a comparative quote / assessment / opinion.
    1. Always compare apples with apples, after all, the idea behind obtaining multiple quotations is to compare them. Make sure that you are being fair towards the individuals or companies that have taken the time to submit quotations.
    1. Obtain references on the companies if quotes are competitive and you are still unable to decide – they should help you make up your mind.
    1. If you wish to establish long standing professional relationships, advise those who are being asked to quote that you are obtaining other quotations, let them know the outcome of the tender process, and be honest with them as to why they were not successful.
    1. Trust your service providers appointed to attend to these matters for you, or get rid of them if you can’t. We work with suppliers and contractors daily and are aware of market related rates. If we advise our clients that we are confident the single quote is market related and acceptable, there is no hidden agenda in doing so.
    1. We all know that cheaper is not necessarily better, and conversely, neither is the more costly by default! At the end of the day we should be getting what we were quoted for, and what we are paying for – read the fine print.

 

And finally, often the reason for obtaining multiple quotations is lost in translation. If you are looking to terminate the services of a company for poor service delivery, address it as such, and avoid using quotations as a reason to end the relationship.

Are Liquidators Bound By Restrictions In Title Deed Conditions In Homeowners Associations?

Trevor Simon, a Director with Fluxmans Attorneys, wrote this article exclusively for initial publication by Ecliptic Estate Management, presenting the facts behind a ruling which now sees HOAs enjoying the same level of protection afforded to Bodies Corporate and municipalities in respect of outstanding debts.

 

    1. The Supreme Court of Appeal recently handed down a Judgment where they held that Title Deed conditions which were binding on owners of property within the Home Owners Association (“the HOA”) who were similarly binding in the event that the owner is liquidated.
    1. The relevant case is Cowin N.O. v Kyalami Estate Home Owners Association (499/2013) [2014] ZA SCA 221 (12 December 2014).
    1. The facts of the case were this:

 

3.1 Silver Tunnel Investments 7 (Pty) Ltd (“Silver Tunnel”) owned a property (“the Property”) in Kyalami Estate Home Owners Association (“the HOA”).

3.2 The Title Deeds of each of the dwelling units including the one in respect of the application contained the following restrictive title conditions:

“Every owner of the Erf or any subdivision thereof or any unit thereon as defined in the Sectional Title Act, shall automatically become and shall remain a member of the Home Owners Association and shall be subject to its constitution until he ceases to be an owner as aforesaid. Neither the Erf nor any subdivision thereof nor any interest therein nor any unit thereon shall be transferred to any person who has not bound himself to the satisfaction or such Association to become a member of the Home Owners Association”.

3.3 Silver Tunnel were placed into liquidation pursuant to which Cowin and Sekati were appointed as liquidators.

3.4 Prior to its liquidation, Silver Tunnel had registered three mortgage bonds over their property in favour of Absa.

3.5 Absa obtained Judgment against Silver Tunnel subsequent to its liquidation on 8 June 2010 pursuant to which the Property was declared specially executable.

3.6 Thereafter, the joint liquidators concluded an Agreement of Sale of the Property with a third party, Oxter Construction (the purchaser), for a purchase price of R2.25 million.

3.7 The purchaser fulfilled its obligations under the Sale Agreement and the municipal rates clearance amounts were duly settled.

3.8 The HOA refused to issue a Levy Clearance Certificate to the purchaser to  facilitate the transfer of the Property due to the fact that there were unpaid arrear levies in the sum of R887, 408.94 due to the HOA by Silver Tunnel at the time of its liquidation.

3.9 The joint liquidators argued that the refusal by the HOA to issue a Levy Clearance Certificate prejudiced the rights of Absa as the secured creditor over the Property and that any amounts due to the HOA by Silver Tunnel could not supersede those of Absa. In other words, the joint liquidators contended that the HOA were confined to proving its claim for arrear levies as a concurrent creditor in the insolvent Estate of Silver Tunnel. The joint liquidators furthermore contended that the title condition which bound Silver Tunnel as a member of the HOA and which accordingly obliged them to adhere to the rules of the HOA including the payment of all levies, did not bind the liquidators of the Estate on the basis that that the conditions in the Title Deed merely created a personal relationship between the parties to the Agreement at the time (i.e. Silver Tunnel and the HOA). In other words, the liquidators contended that as third parties, they were not bound by such a condition and were accordingly not obliged to effect payment of the full outstanding arrear levies to the HOA.

3.10 The Court was called upon to determine two issues:

3.10.1 Was the condition in the Title Deed a real right which meant it could be enforced against the owners’ successors in title or was it a personal right which could only be enforced against a specific person? “the first issue”

3.10.2 Was the HOA merely a concurrent creditor of the insolvent Estate in which case they would only have a concurrent claim against the insolvent Estate for the payment of the arrear levies or did the HOA have a right to claim all levies due to it in terms of the condition contained in the Title Deed? “the second issue”

3.11 With regard to the first issue, the court held that the condition contained in the Title Deed was a real right which meant the condition was enforceable against all successors in title. As a result, the HOA could enforce their real rights against the liquidators of the insolvent Estate.

3.12 With regard to the second issue, the court reasoned as follows:

3.12.1 The HOA had a choice whether to lodge its claim as a concurrent creditor or to claim all unpaid levies in terms of the condition in the Title Deed.

3.12.2 The Court analysed comparable cases where municipalities and Bodies Corporate were afforded legislative protection allowing them to veto registration of transfer until payment of what was due to them had been made.

3.12.3 The Court ruled that Home Owners Associations had acquired similar status by the registration of the condition in the Title Deed of the members. Accordingly, by virtue of the condition of the Title Deed, the HOA could insist that full payment of levies which were due to them be paid to them by the insolvent Estate before the HOA issued a Clearance Certificate.

3.13 The effect of the aforegoing Judgment is as follows:

3.13.1 HOAs now enjoy the same level of protection afforded to Bodies Corporate and municipalities in respect of outstanding debts and they can now withhold Clearance Certificates until such time as the levies have been paid in full.

3.13.2 Liquidators are bound by the conditions of the Title Deed.

 

Article written 16 May 2015 by:

Trevor Simon

Director

Fluxmans Inc.

www.fluxmans.com

The Personality of Home Owner Association / Sectional Title Residential Estates

Close proximity living in residential estate communities is so commonplace these days, we are likely to assume that while the composition, size, location and aesthetics of the scheme may differ, the experience of living there should be similar. Nothing could be further from the truth. In our profession, managing estates at grass roots level, we hold the heart of each estate in our hands, and each pulses to the beat of a different drum, each one has a unique personality. An additional question should be added to the checklists of those looking to buy / rent in residential estates: what is its personality?

 

The right fit

The reasons why people choose to live in close proximity to each other, are as diverse as the individuals themselves, but in doing so, a new community, with its own unique culture and personality, is created. Being part of a community means that we are connected in some way, and that we (should) share common factors aside from the common property or communal facilities.

 

Even if we never speak to our neighbours, their positive actions, such as landscaping their garden with eye catching shrubs and bright flowers, or negative actions, such as hosting loud, debauched parties, will impact on us. It is therefore vital to understand, in advance, how these matters are dealt with by management, and how the Conduct Rules and other governance documents are applied.

 

Having the paperwork in order is all very well, but if the personality (and I use this in a broad sense of the word) of the estate is that of surfer-dude, and the practical application of law and order is not deemed necessary to the survival of that estate and is not part of its social identity, then it is collectively (this factor being vital to understand) going to resist all attempts by your corporate-banker personality to do so.

 

You aren’t going to fit in, and will most likely end up relocating in the end because the daily fight simply isn’t worth it; fighting for something is far more ‘soulful’ than fighting against it. An estate, which is a living breathing entity, is bigger than one person! I am by no means advocating that one person can’t make a difference, but when it comes to our place of refuge, where we should feel secure, welcome and nurtured, it is far more prudent, and cost effective, to apply due diligence before buying / renting, and to source an estate that matches your personality type.

 

Going deeper

Ethics are the rules we choose to live by once we decide to live together. So what are the rules that we are going to live by seeing as we have chosen to live together? How do we negotiate living in community with each other? How do we figure out how we live together when we want to live together? Ethics requires us to be concerned about the rights and wellbeing of others. This is not easy because we are self-centred individuals, we live inside ourselves and are driven to be very concerned about self. Ethics requires us to transcend the simplistic equation of me, myself and I, and to be just and reasonable and be our best self with others. (10 Virtues of Outstanding Leaders – Leadership and Character: Al Gini and Ronald M. Green: Wiley-Blackwell 2013.)

 

Aside from requesting the governance-documentation, an understanding of the ethics of the estate will further reveal the personality type that you are thinking of becoming intimately involved with. Now this is where it gets tricky because some people, no matter which angle you approach it from, should not reside in close proximity to each other as a greater awareness and understanding of community is absent. And wait for it…..that someone could also be you. Entering into a long term relationship with a property is fraught with peril at the best of times, but when it is located within a residential estate, serious consideration and thought must be invested in that decision, before investing in the property.

 

Conclusion

Being part of any community can either be a rewarding experience, or it can leave us feeling as if we are the ugly duckling. This is not an outcome we desire when it comes to our home, and a few discerning questions, asked of the right people / companies can prevent this. Ask for concrete examples of how specific situations have been managed in the past, pose some what if…questions, and do some research on the outsourced companies employed at the estate, to ascertain if their personalities resonate with you. And when you’re done, complete your investigation by establishing whether or not your temperament would feel at home in that estate.

The Benefits of Getting Older

And you thought there weren’t any! So you’ve turned 60, or been there for some time (even if you don’t admit it to anyone), and were despairing that there weren’t any benefits to getting older, other than the occasional discount on pensioners day at the local supermarket.

 

I’ve been told that some of the benefits of being a pensioner include:

  • You are likely to be released first in a hostage situation;
  • No one expects you to run into a burning building;
  • You have a party and the neighbours don’t even realise it, so you don’t have to invite them;
  • Your secrets are safe with your friends because they can’t remember them.

And the list goes on…

 

While many readers can easily add to the anecdotal list above, you may not realise that as a pensioner (you must be over 60 years old though), you may be entitled to a rebate on your rates for your property.

To quote from the City of Joburg website: “The City is sensitive to the needs of its senior citizens. Registered property owners who are pensioners may apply for a reduction of rates, subject to certain criteria.”

Pensioner’s rebate application forms are available from any municipal Customer Service Centre, or download it from the website or even better, ask a grandchild to download it from the website for you, it will give you an excuse to spend more time with them.

 

As a Pensioner you will qualify for a rebate if:

  • You are the owner of the property in respect of which the rates are charged; and
  • You live on the property; and
  • You are at least 60 years old; and
  • The total value of your property as per the General Valuation Roll, that is, the land plus the improvements, is under R1 500 000;and
  • You are dependent on a national security grant – in which case you will get a 100 percent rebate (subject to criteria); or
  • You have a gross monthly earnings of less than R5 000 a month – you will get a 100 percent rebate (subject to criteria);  or
  • Your gross monthly earnings are higher than R5 000 but less than R9 000 a month – you will then be able to get a 50 percent rebate (subject to criteria).

Your rebate will be valid for two years after it has been approved, so remember to re-apply timeously.

So carry on enjoying that …..

  • You can get away with all sorts of stuff under the guise of senility.
  • You drive down the street and people get out of the way.
  • Your spouse still snores, but you can’t hear it.
  • You are less likely to be subjected to a strip search at the airport.

This article was prepared by:

Nichola Wolff
Thomson Wilks Inc
Tel  27 (0) 11 784 8984
Fax 27 (0) 11 883 8660
Website www.thomsonwilks.co.za
23 Impala Road, Chislehurston, Sandton
P O Box 3242, Parklands, 2121

Look and Log - In the City Of Johannesburg

The City of Johannesburg relies on its residents to log service delivery failures so that it may have the opportunity to attend to them. If issues are not logged on the City’s service delivery systems, the entities are likely unaware of the breakdowns and until you report such, the breakdowns may remain unresolved.

 

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Put It in Writing

Whilst written for the US market, the tips provided in this article provide food for thought, for owners considering letting their units for the first time. Our office may also be contacted for assistance relating to individual estate policies and tenant information.

 

Often, when renting an apartment, tenants are overwhelmed by the amount of information they are given, from the initial apartment viewing, to filling out the application, to getting approved, to finally, moving in.  While it’s important to let all prospective residents know and understand the rules they must abide by when moving into their new apartment home, it’s even more important that the rules and regulations be put into writing.

 

While standard information such as lease term, rental amount, and deposit information is almost always included in every lease, it’s important that other items are written into the lease as well.  It’s also a good idea to mention these items to residents so that they are aware that they are there.  After all, most tenants do not read their lease from beginning to end.

 

Here are some things that property managers should ensure are included in every lease and mentioned to each tenant as well:

 

    1. Rental due date.  While most leases will stipulate that rent is due the first of each month, most management companies will offer a grace period of a few days.  If rent is considered LATE on the 1st, put it in the lease, likewise if the late period starts on the 3rd.
    1. The penalty for late rent.  This needs to be spelled out as well.  Tenants must be informed what the penalties will be if the rent is late, and if extenuating circumstances will ever apply.
    1. What utilities, if any, are included in the monthly rent?  If gas is included in the monthly rent, state that in the lease.  Likewise, if the tenant is responsible for electric, that should be stated in the lease as well.
    1. Apartment alterations.  This can be a sticky area, and one most likely to be abused.  If tenants are required to get permission from management prior to making ANY alterations to the unit, it must be spelled out in the lease.  This includes anything from painting the walls, to installing a ceiling fan.  If this is not spelled out in the lease, tenants cannot be penalized for any property alterations found upon move-out.
    1. Authorized landlord entry.  Another sticky area.  Years ago, when I rented a house, the owner of the house thought nothing of using her key to enter the property, clip roses in the backyard, and complain to me about the unwashed dishes in the sink.  Only legal action could keep her out.  While landlords are perfectly within their rights to enter a property during an emergency situation, 24 hour notice is typically required to enter any other time.  It would be in your best interests to put this in the lease.  And obey it.
    1. Pet policy.  If your property doesn’t allow pets, put it in the lease.  If you do accept pets, layout any restrictions (dogs under 25 pounds), and any pet deposits required.  Also be sure to note whether the deposit is refundable upon moveout.

Posted on 10 July 2014 by Mary Girsch-Bock
http://www.propertymanager.com

Prevention of Food Borne Illnesses While Traveling

For those traveling during the holidays, or who are frequently away from home on business, this article provides some practical tips on how best to safeguard against disease and illness.

 

Your best defense against food borne illnesses is to use common sense. The following tips for eating and drinking safely may be of assistance:

 

Water and other drinks

  • The most common source of dietary problems while travelling is drinking water, including water with ice. Freezing water does not kill bacteria and ice cubes present the same problem that tap water does. You can safely make your own ice if you boil the water first.
  • Bottled water is generally safe, but only in sealed, tamper-proof containers.
  • Coffee and tea are generally harmless, but it’s best to take your hot drinks black, without potentially contaminated milk. Cream from sealed containers, if pasteurized, is usually safe.
  • It is usually safe to drink canned soda and juice, beer, wine and other alcoholic drinks.

 

Food hazards

  • It may be convenient, but it’s often risky to purchase food from street vendors. Rather visit reputable restaurants.
  • Raw foods such as salads, as well as fruits and vegetables without peels, are often contain harmful bacteria.
  • Cold meat platters, cheese, buffet foods and unsealed mayonnaise are often home to rampant bacteria and should be avoided.
  • Seafood dishes are notorious for causing intestinal problems, as fish accumulate contaminants from a wide variety of sources. Smaller fish tend to be safer. Fish organs and shellfish (such as clams, mussels and oysters) are usually best avoided.
  • Avoid unpasteurized dairy products, including cheese and yogurt. Check labels for evidence of pasteurization; most canned milk is safe.
  • Nuts and other shelled foods are usually a good choice.
  • Avoid food that may have been rinsed in contaminated water, such as salad and fresh fruit. Fruits and vegetables you can peel yourself are usually safe.
  • Condiments such as mayonnaise, ketchup and salad dressings are safest in sealed packages.
  • Order portions “well done” or at least “medium well,” and consume the food only if served hot. Be especially cautious of runny eggs and sandwiches with lots of raw vegetables.

 

Other sources of contamination

You don’t need to drink contaminated water to be exposed; always consider additional exposure, for example the water you use to brush your teeth, or to clean your contact lenses or dentures. Be sure to use bottled, boiled or purified water for these purposes as well. Contaminated water can also make you sick if you swallow or inhale it while bathing, showering, or swimming.

 

Water purification tactics

Boiling water is generally the most effective way to remove parasite contamination. Maintain a rolling boil for at least one minute (longer at higher altitudes, where the boiling point may be lower). Let the water cool itself slowly without adding ice. Allow any sediments and particles to settle before drinking, and then decant the water from the top into another container.

 

Commercially available iodine or chlorine tablets kill bacteria and viruses, but are ineffective against some protozoa (like cryptosporidium). Iodine is the more effective of the two solutions, but is not recommended for long-term use, especially by pregnant women or travellers with a history of thyroid problems. Read directions on all tablet systems for tablet-water ratios and dissolving times.

 

One other bit of advice – wash your hands before you eat. Keep in mind that you must use “safe” water to wash not only your hands but also any food you are preparing.

 

Sources: http://www.independenttraveler.com; http://wwwnc.cdc.gov/travel/page/food-water-safety

Employment: Bodies Corporate, Home Owner Associations, Individuals

It is tempting, for both the employer and the employee, to circumvent the red tape for many reasons, but this is not advisable, especially for governing bodies such as Home Owner Associations or Bodies Corporate.

 

Employee rights begin before you think they do

By Ivan Israelstam

 

According to section 213 of the LRA an employee is:

“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying out or conducting the business of an employer…”

 

This definition seems strongly implies that the employer’s legal obligations begin only on the day that the employee physically begins work. However, this is not necessarily so. The courts have found that the employee is protected by labour law from the moment the employment contract is concluded even if the employee has not yet started work; and even if the contract has only been orally agreed.

 

For example,  in the case of Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39). Manqele was offered a position by the employer as a sales rep. The parties concluded a written contract of employment in terms of which he was to commence work on 1 April. Prior to Manqele beginning work, he was advised that the employer was no longer prepared to employ him. In terms of the contract of employment, Manqele had been entitled to a company vehicle.

 

The employer believed that Manqele had made a misrepresentation as to the status of the car he had chosen, and on this basis took the view that there was no contract, as the parties had not reached agreement as to the condition of the motor vehicle stipulated in the letter of appointment.

 

Manqele took the matter to the CCMA where  the arbitrator ruled that Manqele had become an employee the moment he accepted Wyeth’s offer of employment. Wyeth took the arbitrator on review at the Labour Court on the grounds that the arbitrator had arrived at an “unjustifiable conclusion in ruling on the definition of an employee”.

 

That is, Wyeth argued in the Labour Court that Manqele did not become an employee merely because of the employment contract. This argument is supported by an earlier Labour Court finding in the case of Whitehead vs Woolworths (Pty) Ltd (1999 20 ILJ 2133). In that case the Court found, according to the report, that a person who is party to a contract of employment but who has not yet commenced employment is not an employee for the purposes of the LRA.

 

However, despite the Woolworths case finding the Court, in the Manqele case found that, as a party to a valid and binding contract of employment, Manqele was an employee for the purposes of the LRA.

 

The employer recently took the matter further to the Labour Appeal Court (In Wyeth SA (Pty) Ltd vs Manqele & others 2005, 6 BLLR 523) but lost yet again. The Court upheld the earlier decisions by the CCMA and Labour Court that Manqele had achieved legal employee status the moment his employment contract was signed.

 

This decision poses a number of concerns for employers.

Firstly, the fact that two different benches of Labour Appeal Court judges (Woolworths on the one hand and Wyeth on the other) made two such diametrically opposed decisions on a matter as fundamental as this one creates major uncertainty as regards the law.

 

Secondly, employers are now clueless as to whether they are or are not entitled to cancel employment contracts prior to commencement of work.

 

Thirdly, where the parties have agreed in principle that the employee will get the job it is now not clear whether a disagreement on the terms of the employment does or does not delay the legal validity of the contract of employment.

 

In the light of these dangers employers should:

Avoid entering into employment agreements until all the terms and conditions have been dealt with thoroughly

Ensure that, before offering  anybody a job, there are no obstacles to allowing the candidate  to take up the position

Make it clear that the discussion of the terms and conditions of a contract in no way constitutes an offer of employment.

Never employ, contract with or cancel the employment contract of any person without involving a labour law expert experienced in dealing with these tricky issues.

 

lvan lsraelstam is the Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za

Beehives and Colonies

Summer is the time of year when beehives can spring up in gardens, and a newly established hive can certainly be problematic. However, if a hive is allowed to establish under the right conditions and with sufficient time, it can be home to well over 100,000 bees! How do you deal with the removal of a hive? If you’re thinking of tackling it with a can of Doom, think again.

 

Rietha Crafford is a Johannesburg bee keeper, and whilst she claims she’s had her fair share of stings in this line of work, she doesn’t mind as she says she loves bees and bee keeping. Rietha also specialises in removing beehives from gardens, and rather than adopting a lethal approach towards the hive, she prefers to relocate these busy creatures to a new home whenever possible.

 

But what happens to all those bees that are out collecting pollen when the hive is removed, as these bees will return to find their home is no longer there? If it was a large established hive that was removed, it may seem as if the area is still swarming with bees; these bees will eventually move on to another hive and join the new colony. And they’re not silly creatures … they’ll bring some pollen or nectar to the new hive and will eventually be accepted there as worker bees.

 

Due to this ‘dislodgement’, Rietha says she prefers to remove a hive either early in the morning or late at night so that most of the bees are at home. Worker bees tend to be out between 10:00 and 16:00 (and whilst we may think a 6 hour working day isn’t too bad, bear in mind they don’t have weekends off), and when Rietha re-establishes a hive she likes to have as many worker bees present as possible. Inevitably though, some of the worker bees will be lost, but this results in an excess of honey from the removed hive and this extra food helps the relocated hive re-establish itself very quickly.

 

Rietha says killing bees is always a last resort, and will only do this if a hive is located in a place that makes it impossible to remove, such as inside a building cavity accessed only through a small opening. The importance of bees to our survival is a fact not lost on her and most people, she says, are not aware that the honey bee is responsible for about 70% of all the food we eat! Unlike America or Europe, South Africa doesn’t have a wealth of pollinating insects, making us even more dependent on the humble little honey bee.

 

But as much as we need our bees, we must also respect the hazard a well-established beehive poses, when in close proximity to areas where humans live or are engaged in outdoor activities. If a person is allergic to bee stings, a single sting could prove fatal. For the rest of us, Rietha advises that the best way to treat a sting is with ice. Frozen packs of vegetables work very well for this purpose, and she recommends keeping the cold-pack applied for at least an hour or two until the stings no longer burns; this should help enormously in reducing the reaction and the swelling.

 

Rietha Crafford can be contacted on 072-934-9060 or at rietha-c@ophrah.co.za.

Watering Wisely

Water in South Africa is a precious resource – for some handy tips regarding watering of our cherished gardens.

 

    • Water in the early morning or late afternoon to reduce water loss to evaporation.
    • In winter, water in the morning and water less often when evaporation rates are lower. Avoid watering deciduous plants when they are dormant.
    • Water less if the weather is cool and overcast or if it has just rained. Some irrigation systems have rain sensors, which automatically turn the system off if there has been rain.
    • Avoid watering your garden on windy days, when evaporation rates are higher.
    • A drip irrigation system is the most water efficient technique of watering.
    • Make the soil more water retentive by regularly adding compost.
    • ‘Water train’ trees and large shrubs. By gradually changing from frequent, shallow watering to a less frequent, but deeper watering schedule, you can ‘train’ permanent plants to need less water. This approach encourages deep root growth that will sustain the plant during dry periods.
    • Make large water basins around your trees and shrubs to hold the water while it slowly seeps into the soil.
    • Once water wise trees and shrubs are established they do not require regular watering. Simply watch out for signs of stress during particularly hot or dry weather and then water deeply. Water stress indications are: die back of branches, lack of lustre in the leaves, yellowing or thinning foliage, leaf drop, scorched leaves and smaller-than-normal new leaves.
    • Keep the soil well mulched to reduce evaporation. Leave a gap of 1cm between the tree bark and the mulch layer to prevent bark rot.
    • Water lawns only when they need it. A lawn needs water if the grass blades do not spring back two minutes after being walked on and footprints are left, or if they take on a subtle bluish tinge.
    • Water deeply, and less often, to encourage deep root growth, which makes the lawn more drought resistant. In sandy soils, irrigate more frequently but not so deeply, as deep watering will percolate right past the root zone and be lost to the plant.
    • Aerate the lawn regularly to facilitate the penetration of water.
    • Lawns in shady areas need less water than lawn areas in full sun. Reduce irrigation in shady lawn areas by monitoring the soil moisture and irrigating accordingly.
    • Avoid having trees in the lawn area. They deprive the lawn of water, especially shallow-rooting trees.
    • Water in the early morning. This allows the lawn to dry out during the day, making it less susceptible to diseases. It is also usually less windy at this time.

Domestic Workers: What You Should Know

A practical guide issued by the Department of Labour on employing Domestic Workers.

 

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Combat The Stress Often Caused By Close-Proximity Living

Close proximity living, while highly beneficial and rewarding, also contains multiple stressors, especially if an estate is not managed correctly: noise pollution, pet nuisance, infringement on personal and private space, to name but three. Even when the management of the estate is effective, the constant awareness of other people, and having to be cognisant of their rights, is stressful to a degree.

 

 Stress – The modern poison that is making us fat, bald, crazy and extremely unhealthy, by Carolanne Wright

(Natural News) The term stress is tossed around freely in this modern age and has become a casual buzzword for just about any predicament that we find unpleasant. Yet how it truly effects health and well-being in substantial ways is rarely acknowledged. Linked with a range of degenerative diseases from cancer to diabetes to stroke, stress is a silent poison, sapping us of vitality and, often times spirit. Weight-gain, mental illness and hair loss are common indicators of a life filled with too much stress. Taming this unruly beast should be a top priority for anyone who values solid mental, physical and emotional health.

 

Three stress hormones that wreck havoc on the body

When we are stressed, the body pumps out three hormones: adrenaline, noradrenaline and cortisol. Each is produced by the adrenal glands and all three trigger a sequence of:

 

– Suppressed neurotransmitter activity
– Endocrine system breakdown
– Poor immunity
– Sluggish digestion

 

These hormones also influence the body’s response to stress. If we feel the urge to fight the perceived danger, aggression, irritability, rage and violence will be displayed. Flight will trigger avoidance, mental confusion, withdrawal and fatigue. And fright will lead to states of anxiety, apprehension, depression and panic.

 

Mood swings, obsessive-compulsive and bipolar disorders are aggravated by stress-induced hormonal imbalances as well. These hormones also cause hair loss and fat accumulation, especially in the abdominal region.

 

The connection between insulin resistance and stress

As the incidence of chronic stress becomes more frequent, so does insulin resistance. When we are constantly in a state of ‘threat’ or ’emergency,’ the body releases glucose to provide fuel for fight or flight actions. Unfortunately, it isn’t truly needed so the pancreas creates a surge of insulin to deal with the onslaught of glucose.

 

Over time, this cycle exhausts the pancreas and creates insulin resistant cells. Ultimately, more stress is placed on the body which perpetuates the pattern. Tiredness, fatigue and exhaustion set in.

 

When glucose metabolism becomes inefficient, other organs like the brain, liver, adrenals, thyroid and gut begin to malfunction due to insufficient fuel. The development of disease follows, including high blood pressure, arthritis, kidney failure, neurological problems and ulcers.

 

With such a slew of health issues rooted in an overstressed system, balancing the body to break this harmful cycle is extremely important for well-being.

 

Calming and replenishing the body

Beyond lifestyle changes to minimize stress such as yoga, t’ai chi and breathing exercises, several supplements are helpful to properly align the hormonal system and reduce the occurrence of disease.

 

  • Progesterone – Encourages the production of dopamine, a feel good neurotransmitter linked with positive mood, motivation and normal sexual response. Potent antioxidant and anti-inflammatory characteristics. Prevents water retention which reduces blood pressure. Balances estrogen and testosterone hormones.
  • Vitamin D – Stress depletes this vitamin significantly. Maintains proper blood pressure. Strong antioxidant properties.
  • Glycine and GABA – Two important calming neurotransmitters.
  • Tyrosine – Diminished by stress. A precursor to dopamine. Hinders inflammation.
  • Zinc and chromium – Important for balanced glucose levels.
  • B vitamin complex – Calms the nervous system while providing energy.
  • Inositol – Helps to decrease insulin resistance. Soothes depression, mood swings, anxiety and bipolar disorder. Also prevents stress related hair loss.
  • Additionally, the herbs lemon balm, valerian root, passionflower and St. John’s wort along with the amino acid L-theanine show promise in reducing stress as well.

 

Sources for this article include:

http://www.progesteronetherapy.com
http://www.mayoclinic.com/health/stress-symptoms/SR00008_D
http://www.huffingtonpost.com
http://www.foxnews.com
http://science.naturalnews.com/pubmed/16930802.html

Introduction to Sectional Titles By Prof Paddock

The Sectional Title Act can be a minefield for the uninitiated; this article assists home owners in understanding the basics.

 

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New Certificate Requirement for Electric Fence Systems

It is important for practitioners dealing with a change of ownership of immovable property to be aware of the latest developments in terms of the Occupational Health and Safety Act 85 of 1993 (the Act) regarding electric fences. Regulation 12 of the Electrical Machinery Regulations, 2011 imposes an obligation on the user of an electric fence system to have an electric fence system certificate of compliance. The requirement does not apply to a system in existence prior to 1 October 2012. However, as with an electrical compliance certificate, this certificate will be required where an addition or alteration is effected to the system or where there is a change of ownership of the premises on which the system exists if the change of ownership takes place after 1 October 2012.

 

The electric fence system certificate is separate from an electrical compliance certificate and is therefore an additional requirement if the property has an electric fence system. It will also be necessary to include an appropriate clause in sale agreements concluded after 1 October 2012 if there is an electric fence system on the property. A transfer registered after 1 October 2012 therefore triggers the obligation to provide a certificate. It will thus be necessary to arrange for an electric fence system certificate if an electric fence system exists on a property that is in the process of being transferred.

 

The certificate is however transferable: Once it has been issued, there is no need to obtain a new one on a change of ownership. Three questions arise in response to the above:

 

Who is the user in respect of sectional titles? Must the owner of a unit obtain a certificate when the unit is transferred?

 

If a property on which an electric fence system is situated is sold and the sale agreement is silent on who is to obtain the certificate, who is responsible for ensuring that it is obtained?

 

If a property is leased and the lease is silent on the issue, who is responsible for the certificate – the lessor or the lessee?

 

The regulations do not provide clear answers to these questions and they therefore require amendment.  In the interim, I submit the following comments.

 

Who is the user in a sectional title scheme?

The common property in a sectional title scheme comprises the land and permanent attachments to it that are not included in sections (s 1(1) of the Sectional Titles Act 95 of 1986 and GJ Pienaar Sectional Titles and Other Fragmented Property Schemes 1ed (Cape Town: Juta 2010) at 72). An electric fence system erected on the common property forms part of the common property and is therefore owned in undivided shares by the sectional owners in the scheme (s 2(c) of the Sectional Titles Act).

 

A general duty is imposed on a body corporate to control, manage and administer the common property for the benefit of all owners (s 37(1)(r) of the Sectional Titles Act). ‘User’ is not defined in the Electrical Machinery Regulations, whereas the Act defines ‘user’ as:
‘[I]n relation to plant or machinery, means the person who uses plant or machinery for his own benefit or who has the right of control over the use of plant or machinery, but does not include a lessor of, or any person employed in connection with, that plant or machinery.’

 

A body corporate falls within the definition of ‘user’ as it exercises the ‘right of control’ over an electric fence system erected on common property. The owner of a sectional title unit, likewise, falls within the definition of ‘user’ as each unit owner has the ‘benefit’ of the system. In addition, the body corporate is required to exercise its control for the benefit of all the sectional owners (CG van der Merwe Sectional Titles, Share Blocks and Time-sharing vol 1 Service Issue 14 (Durban: LexisNexis 2012) at para 14 2 14 11).

 

In respect of existing electric fence systems, a certificate is required only if there is a change of ownership of the land on which the system is situated. The land does not form part of a sectional title unit being transferred. However, as the sectional owner’s undivided co-ownership in the land is an accessory to the section (GJ Pienaar (op cit) at 65), a change in ownership of a unit brings about a change in co-ownership of the land. The transfer of a unit will trigger the application of reg 12, which stipulates that every user of an electric fence system shall have an electric fence system certificate.

 

Unlike a certificate of compliance required in terms of the Electrical Installation Regulations, 2009, where the user or lessor may not allow a change of ownership if the certificate is older than two years, there is no such provision in the Electrical Machinery Regulations. As stated above, the electric fence system certificate is transferable and does not expire.

 

I submit that a separate certificate is not required by every sectional owner. If there is a change of ownership of a unit in a scheme, by virtue of the change of ownership in the common property, the body corporate should be obliged in terms of reg 12 to obtain an electric fence system certificate of compliance. Thereafter, if a sale agreement requires a seller to produce a certificate, a certificate issued to the body corporate and produced to the conveyancer in respect of the transfer of any sectional title unit in the scheme would be sufficient to comply with the requirements of reg 12.

 

Responsibility for obtaining the certificate

As stated above, reg 12 of the Electrical Machinery Regulations stipulates that ‘every user or lessor’ of an electric fence system shall have an electric fence system certificate. This wording is similar to that of reg 7 of the Electrical Installation Regulations, which stipulates that ‘every user or lessor of an electrical installation, as the case may be, shall have a valid certificate of compliance’.

 

Regulation 12 differs from reg 7 in that the former stipulates that ‘if there is a change of ownership … the user or lessor shall obtain an electric fence system certificate’, whereas the latter provides that ‘the user or lessor may not allow a change of ownership if the certificate of compliance is older than two years’. Regulation 12 does not prohibit the transfer of ownership in the absence of a certificate. It does, however, place an obligation on the ‘user’ to obtain a certificate.

 

Although there may be a difference of opinion on this point, I submit that there is nothing in the regulations to prohibit transfer in the absence of a certificate and it is the purchaser who would be in violation of the regulations once transfer has passed. The obligation therefore falls on the purchaser to obtain the certificate.

 

There is no obligation on the conveyancer to obtain the certificate on behalf of the transferee unless the agreement of sale specifically places that obligation on the conveyancer.  Conveyancers must peruse the sale agreement and establish whether reference is made to the certificate.  Provided that the agreement of sale does not prohibit it, transfer may be registered without a certificate having been obtained. A clause in a sale agreement that places an obligation on the seller to provide the purchaser with an electric fence system certificate serves a twofold purpose: It removes the ambiguity created by the imprecise wording of the regulation and it protects the purchaser.

 

Penalty

Failure by the user to obtain an electric fence compliance certificate where an addition or alteration has been effected or where there has been a change of ownership of the premises on which the system exists (if the change took place after 1 October 2012) could result in a fine or a prison sentence.  In terms of the reg 24 of the Electrical Machinery Regulations, any person who contravenes or fails to comply with any of the provisions of reg 12 shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a maximum of 12 months and, in case of a continuous offence, to an additional fine of R 200 for each day on which the offence continues or additional imprisonment of one day for each day on which the offence continues: Provided that the period of such additional imprisonment shall not exceed 90 days.

 

Lease – who is responsible for the certificate?

If a property is leased, and the lease is silent on the issue, who is responsible for the certificate – the lessor or the lessee? The Act’s definition of ‘user’ specifically excludes the lessor, while reg 12 specifically includes the lessor. But it is the lessor of the electric fence system that is referred to in reg 12, not the lessor of the premises on which the system exists – a distinction that creates ambiguity rather than clarity. It is unclear why the drafters specifically included the lessor.

 

Applying the definition in the Act, the user is the person who ‘uses … for his own benefit or who has the right of control over the use’ (my emphasis).

 

Who has the right of control? The lease in each case will determine the answer to this question. In a property with a single tenant, the system may be controlled by the lessee or the lessor. In a multi-tenanted building it is likely that the lessor will control the system.  The body corporate will control the system where the lease pertains to a sectional unit in a sectional title scheme.

 

Who is using the system for their own benefit? The landlord benefits from the existence of the system on the property that he is renting out. However, the tenant also benefits. Without clarity in the wording of the regulation, one must apply common sense. It would be inequitable to require a tenant to obtain a certificate because the landlord has sold the property. The landlord should therefore obtain the certificate. Nonetheless, it would be prudent to include a clause in the lease to address this issue.

 

It is hoped that there will be amendments to the regulation to provide more clarity on these issues.

 

Conclusion

In summary:

A sectional title owner need not obtain a certificate. Following a change in ownership of a sectional unit, a body corporate should obtain a certificate.

Unless a sale agreement provides otherwise, the purchaser of a property must obtain a certificate.

A landlord should obtain a certificate for leased property.

 

Written by: Carol McDonald LLB (UKZN) BCL (University of Oxford) is an attorney at Cox Yeats in Durban.

Employment of Residential Domestic Staff

Residents are often unaware of the legal requirements when employing residential staff, while many adopt the mind-set that the same regulations that apply to corporations, do not apply to them. Labour relations is a minefield for the uninitiated, and ignorance of the Employment Equity Act No 55 of 1998 and the Basic Conditions of Employment Act, as shown by the statistics in this press release, can result in employees seeking retribution via the CCMA.

 

 CCMA experiences huge case load increase

The Commission for Conciliation, Mediation and Arbitration (CCMA) has seen a 25 percent rise in the case workload over the past five years, pointing towards the emergence of an adversarial relationship in the South African labour market, a meeting of the Department of Labour’s top management was told in Benoni, Gauteng yesterday. Nerine Kahn, Executive Director of the CCMA, was speaking at the opening day of the two-day Annual Evaluation and Planning Workshop in which the department reviews its programmes and maps a future strategic direction.

 

Kahn said the case workload in 2012 had escalated and reached an all-time high with 160 000 cases coming under the spotlight. “This figure translates to over 13 000 cases per month or 3 333 cases per week or a total of 667 cases each working day,’’ she said. “The unprecedented rise in the case load points to an antagonistic labour market relations, and this is worrying for stability in the labour market. The situation also indicates that the economic environment is becoming tough,” cautioned Kahn.

 

Kahn said amid the budgetary problems, at the core of the CCMA’s function was mediating and arbitrating in labour disputes. She revealed that over the past year CCMA had handled 79 percent of cases dealing with unfair dismissals and this was followed by eight percent cases of unfair labour practices.

 

Kahn expressed surprise that despite the recent dismal Commission for Employment Equity (CEE) Report on employment equity which showed that black people still lagged behind on equity in the workplace, “I cannot believe that in South Africa we do not have discrimination in the workplace. If you look at the nature of disputes adjudicated at CCMA, I hardly see cases of that nature”.

 

She said with the expected and passing of the Employment Equity Act in Parliament, South Africa should brace itself for a rise in the number of cases that relate to discrimination in the workplace.

 

A new trend emerging in the South African labour market has been a rise in the number of cases brought about by the professionals. “This suggests that professionals are having confidence in the services of the CCMA. The question is what was CCMA created for?” she asked. The CCMA recorded a rise in the dispute settlement rate from 69 percent in 2011 to 72 percent in 2012 and 73 percent in 2013.

 

Media Release: Department of Labour: 11 July 2013

Foreign Domestic Workers and Gardeners

The spirit and ambit of the Immigration Act is to guide, protect and provide regulations for foreign nationals living in South Africa. The Act also protects South African citizens in their employment search and employers must always give preference to SA applicants over and above foreign applicants.

 

For all categories of working permits the foreign applicant must provide the Department of Home Affairs with an SAQA certificate, which is a certification of the foreign qualifications in terms of the National Qualifications Framework. There are two instances when an applicant does not require an SAQA certificate and those are (1) when they are married to, or in a life partner relationship with a South African citizen, or Permanent Resident, or (2) where the foreign applicant has applied for and been granted a waiver of the SAQA requirement through the Director General’s office.

 

Due to South Africa having an unemployment rate of approximately 25% with the majority of the unemployed being unskilled and having at most school leaving education, the Department of Home Affairs would not be able to find grounds to approve a working permit for a foreigner taking up an unskilled position such as domestic or gardening helpers.

 

In summary, the majority of foreign domestic help is employed illegally and the employers should heed the provisions of the Immigration Act which include criminal prosecution and/or a fine.

 

Written by:

Peter Wieselthaler
THOMSON WILKS INC.

Tel +27 (0) 11 784 8984
Cell +27 (0) 82 927 0192
Fax 086 554 1444
Email peter@thomsonwilks.co.za
www.thomsonwilks.co.za

Are You A Criminal and Don’t Know It?

An Electrical Compliance Certificate (ECC) is a certificate issued by a qualified and registered electrician (registered with the Electrical Contracting Board of South Africa [ECB]), which certifies that the electrical installation in your home is safe, according to the minimum standards set out in the regulations.

 

Since May 2009, the regulations issued in terms of the Occupational Health and Safety Act 85/1993 (OHASA) (primarily for work place safety and administered by the Department of Labour) apply to dwellings, i.e. your home.

 

In effect, every home must be in possession of a valid ECC, as the “user or lessor” of an electrical installation is responsible for the safety, safe use and maintenance of the electrical installation he or she uses. Even if you have a valid ECC, if you change an electrical installation, you will need an additional certificate for the addition or alternation.

 

In terms of Regulation 7, “the user or lessor may not allow change in ownership if the Certificate of Compliance is older than 2 years.” And then in terms of Regulation 10, it is a criminal offence not to comply with this regulation. You could receive up to one year’s prison sentence! You cannot agree with your buyer that you won’t supply one.

 

The ECC is often mentioned in the sale agreement, but the obligation to provide the certificate is not only in terms of this agreement, but mainly in terms of the OHASA with the criminal liability attached.

 

Fortunately the conveyancing attorney, and in some instances the bank providing a mortgage, will not allow a transfer to be registered, until the seller has provided the ECC, protecting the seller from criminal prosecution, and the buyer from an unsafe electrical installation.

 

Other than the transfer of ownership, if you have a valid ECC, the ECC will remain valid, and won’t expire. A word of caution though: the minimum standards affecting the regulations do change, and sellers who have a previous ECC from many years ago, will be horrified to learn it could cost them thousands to obtain a new ECC when they sell their home.

 

In summary:

When the seller does not have an ECC

The seller will be in breach of  the agreement and may face prosecution under OHASA

When the seller has an ECC., but  the electrician is not registered with ECB

The certificate is not valid

The seller will be in breach of  the agreement and may face prosecution under OHASA

When the seller has an ECC, but an accredited electrician issued the certificate without the installation being compliant with regulations

The purchaser’s recourse is against the electrician.

 

The seller is not in breach, and there is no possibility of prosecution.
Either the ECB will investigate complaints in connection with its member’s workmanship or the issuing of invalid compliance certificates, or the complaint must be referred to the Department of Labour

 

The ECB’s contact details can be found on http://www.ecbsa.co.za/

This article was prepared by:

Nichola Wolff
Thomson Wilks Inc
Tel  27 (0) 11 784 8984
Fax 27 (0) 11 883 8660
www.thomsonwilks.co.za
23 Impala Road, Chislehurston, Sandton
P O Box 3242, Parklands, 2121

Levy Clearance Certificates in the Transfer Process

In all property transfers where a property is transferred that is in an estate, whether it is a Sectional Title unit, or a freehold property subject to Home Owners Association conditions, the transferring attorney will require a Levy Clearance Certificate from the Body Corporate or the Home Owners Association, as the case may be, before they are able to transfer the property.

 

The transferring attorney will request, from the managing agent, a levy clearance figure reflecting the amount due to the Body Corporate or Home Owners Association, to enable them to issue a Levy Clearance Certificate valid to a particular date. The date is usually the end of the month following the expected date of transfer.

 

In essence, the Levy Clearance Certificate will certify that all amounts due have been paid for that particular property up to the validity date of the certificate, and if there are funds still due to the Body Corporate or Home Owners Association. The issued figure may include levies, water and electricity charges in advance, arrear amounts due in respect of levies, water, electricity, interest and legal costs, special levies and other administrative charges.

 

In the case of Levy Clearance Certificates issued by Body Corporates for Sectional Title Properties, the Levy Clearance Certificate must be valid to the end of the financial year of the Body Corporate, which can of course be up to 11 months in advance. In practice however, Body Corporates are willing to enter into tri-partite agreements, to include the purchaser, which acknowledges that the purchaser will be liable for levies from the date of transfer’ this will enable the Body Corporate to issue the certificate valid to a date that is requested by the transferring attorneys, rather than the financial year end.

 

As mentioned above, the figure issued will include any special levies, even if the special levy is raised for a project to be completed in the future. To avoid a cash flow nightmare, it is important to be aware of any special levies that are raised by the trustees, whether it is a lump sum or a monthly installment added to your usual levy statement. The full amount of the relevant special levy will have to be included in the amount due to obtain the Clearance Certificate.

 

The Cost of obtaining the Levy Clearance Certificate will be included in this statement as an administrative charge, and is for the account of the purchaser. This cost varies considerably from one managing agent to the next. If a second or third certificate is required, if the transfer process is taking longer than expected, a new statement will be requested, and the managing agent will charge for the re-issue of these certificates too.

 

Most managing agents will provide forms to be completed and signed by the seller and / or purchaser, before they issue the Certificate, and in some cases, this will include a debit order facility for the monthly levy amount.

 

After the date of transfer, the transferring attorney will notify the managing agent of the date of transfer.

 

The managing agent may request that the transferring attorneys apportion the whole amount that was payable to obtain the Certificate to the seller, in which case, the managing agent will reconcile the seller’s and purchaser’s ledger accounts, and handle any refunds due to either party.

 

Other managing agents will expect the transferring attorneys to apportion the levy amount as at date of transfer, in which case the transferring attorneys will account to the seller and purchaser after transfer, and each will be charged the pro rated portion of the monthly levy. Where water and electricity charges are included, this becomes difficult for the transferring attorneys, as they are not in possession of meter readings or other insights that the managing agent has. In this case, the attorneys will usually provide the managing agent with a breakdown of how they have apportioned the charges, so that similar entries can be made in the ledgers of the managing agent.

 

This article was prepared by:

Nichola Wolff
MADHLOPA
Incorporated  Attorneys, Notaries & Conveyancers
50A Seventh Avenue
(Off Jan Smuts Avenue)
Parktown North, 2193
P O Box 2710, Parklands, 2121
DOCEX 534, Jhb
Tel : (011) 442 9045
Fax : (011) 327-2681

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