1. LISTER’S LAW
From the desk of Lister & Company
Professionals
Welcome to the April edition of our Law letter. We
hope to entertain you with relevant legal updates and
some legal humour. Please feel free to provide any
input and contributions for further editions.
TYPO’S AND PROOF READING
Sometimes what we intend comes out all wrong and
the following indicates why proof reading is often a
forgotten art.
(1) In a letter to a friend and colleague I wrote –
“As a curtsy I enclose a set of papers …..” my
friend and colleague wrote back – Really Lister,
girls curtsy but I bow to your femininity”
(mmm!)
(2) Newspaper headlines: -
(a) “Man kills self before shooting wife and
daughter” (obviously there are really
zombies!)
(b) “Police begin campaign to run down Jay
walkers” (wow, what about due process of
law?)
(c) “Juvenile Court to try shooting defendant” (I
thought they had abolished the death
penalty?)
(d) “Red tape holds up new bridges” (first
blackouts, now this!)
(e) “Local high school drop outs cut in half” (I
thought failure was enough punishment!)
(f) “Hospitals are sued by 7 foot doctors” (wow,
those are tall doctors)
(g) “Typhoon rips through cemetery; hundreds
dead” (it killed them dead!)
EVICTIONS
According to a recent Constitutional Court judgment,
there is a fundamental difference in the legal protection
afforded to two types of unlawful occupants (M.C.
Denneboom Service Station CC v Phayane (CCT 71/14)
(2014) ZA CC29). They are: residential occupants and
commercial occupants.
Occupants residing on residential premises are afforded
protection in terms of PIE (the Prevention of Illegal
Evictions from and Unlawful Occupation of Land Act).
This Act created an extremely onerous and time
consuming legal procedure for the eviction of those
who occupy residential property.
However, it is important to know that even residents of
“commercial property” are covered because it is not
the categorisation of property that counts but whether
or not the unlawful occupier resides in the property in
question.
Commercial occupants on the other hand (juristic
persons and persons that do not use building structures
as a form of dwelling or shelter) have no such
protection and are accordingly in principle easier to
evict, therefore, because you have a commercial
property does not mean to say that it is easy to evict an
unlawful occupier if for any reason that occupier is
living in and upon the property. Under those
circumstances you would also have to follow the PIE
procedures.
The Constitutional Court case concerned a mixed use
property which was sold on an insolvency auction. The
buyer to his dismay found that the previous owners

2. refused to vacate and the new owner asked the Court
to evict two classes of unlawful occupier; namely –
a) a business in the form of a service station and
convenience store operating from the
commercial portion of the property; and
b) the previous owners of the property who
personally resided on the residential portion.
Because the buyer had not complied with PIE, eviction
was only granted for the non-residential occupants (the
service station and various employees) but the previous
owners themselves could not be evicted without PIE
compliance - what a nightmare for the buyer!
This illustrates why one should be extremely careful
when buying any property on a sale in execution
because it is generally the buyer who is left with the
headache of evicting the occupiers and the transaction
may not turn out to be a bargain you expected because
of costs of evicting the occupiers.
Another point to bear in mind is that as a seller of
residential property you should not allow occupation
prior to registration of transfer.
We recently had a case where client sold a house to a
purchaser and allowed occupation prior to registration
of transfer (and prior to the purchaser obtaining a
bond.) No deposit had been paid and the bond was not
granted because the purchaser did not seriously apply
for the bond.
In this case the property sold was an upmarket
residential home and we still had to use the PIE
procedures to secure the eviction of the occupants.
The buyer was married to an erstwhile attorney and she
knew all her rights under PIE. After following the
stipulated PIE procedure it took some six months to
evict the occupier. All the while the Seller could
obviously not sell the property again. The property was
left in a disgraceful condition and whilst we were able
to obtain judgment for the outstanding occupational
rental and costs the buyer and her husband
disappeared overseas and the seller could not recover
anything. It appeared that the buyer with the
assistance of her crooked ex-attorney husband had
deliberately concluded an agreement of sale which she
had no actual intention of finalising and simply wanted
free accommodation.
No matter what estate agents may tell you as a seller,
do not allow occupation until registration of transfer
unless of course there are watertight guarantees in
place (like provision for a non-refundable deposit which
should cover at least 6 to 12 months’ worth of
occupational rental).
By John Lister
-Adjournment –
One afternoon, a wealthy lawyer was riding in the back
of his limousine when he saw two men by the side of
the road, eating grass. He ordered his driver to stop and
got out to investigate. He asked the men, "Why are you
eating grass?"
“We don't have money for food," the first man replied.
“Then you must come with me to my house," insisted
the lawyer.
“But, sir, I got a wife and three kids here," said the man.
“Bring them along!" replied the lawyer.
The second man exclaimed, “I got a wife and six kids!"
“Bring them as well!", the lawyer proclaimed as he
headed back to his limo.
They all climbed into the car, and once underway, one
of the men expresses, “Sir, you are too kind. Thank you
for taking all of us with you."
The lawyer replied, “I'm most happy to do it. You'll love
my place. The grass is almost a foot tall."

3. IT COULD BE
BACK TO THE
DRAWING
BOARD FOR
SHORT TERM
INSURERS
Many an insured person may
have had the unfortunate
occurrence where their short
term insurer has repudiated a
valid claim and then to add insult
to injury that insured has missed
the deadline on the so called
“time limitation clause”, finding
him or herself up the creek
without the proverbial paddle.
Many may not know that in
cases emanating from insurance
contracts, the insured is afforded
a shorter finite period in which
to approach a court if he or she
is unhappy with the insurers
repudiation.
Generally speaking if one has a
claim you have 3 years in which
to explore it and issue summons.
This is in line with the
Prescription Act; bar certain
exceptions to the general rule.
One of these exceptions are
clauses included in short term
insurance contracts limiting the
period in which to issue
summons to 90 days. This
ultimately leaves an insured
without recourse, but the idea
behind the limitation is to
prevent the insurers from having
to continually fend off baseless
and vexatious litigation. The
difficulty lies in, that often, the
insurer gets it wrong and
incorrectly repudiates a valid
claim.
A decision that was handed
down in the Constitutional Court
may send the insurers back to
the drawing board and render
these occurrences a thing of the
past. Our former Honourable
Justice Sachs handed down an
elegant and well-reasoned
judgment (albeit a minority
judgment) explaining his view on
the issue of whether these so-
called limitation clauses are
reasonable and/or contrary to
public policy.
In his judgment, Sachs J made it
abundantly clear that they were
contrary to public policy, or at
least often have the potential to
be, and found that each clause
must be viewed with
circumspection.
He sought to leave the door
open to litigants who wish to
scrutinize these clauses that all
too often “lurk” in the fine print
to the ignorance of the insured.
His thoughts were well received
by his counterparts also
delivering judgments in the
matter with Justice’s Masoneke,
Makgoro and Langa concurring.
Although the decision did not lay
down a blanket effect over all
time limitation clauses, it
certainly will give the insurers
food for thought to ensure that
the clauses embodied in their
agreements are fair to the
insured and can stand up to
scrutiny.
No doubt there will now be
many cases to be decided on this
interesting point of law in the
future, however Sachs judgment
has certainly tilted the scales
back from the previous “without
a paddle situation” to a more
equitable playing field.
Don’t be intimidated into
accepting that your claim is out
of time. Speak to us!
By
Garry Bell

4. ANC…
WHY DO I
NEED ONE
OF THESE?
You are about to get married,
your future spouse means the
world to you and you are
preparing to share the most
beautiful and special day of your
lives with your family and friends.
The Bride’s dress is exquisite and
the Bride has had fitting after
fitting to ensure it fits just right,
the flowers were chosen weeks
ago and the cake was sampled
and debated weeks before that.
You have paid a wedding planner
a small fortune to ensure that the
table cloths match the chair
covers and all the necessary
pomp and ceremony goes off
without a hitch.
Amidst all this excitement and
anticipation you start to wonder
if it is really necessary to go and
see that attorney- you are madly
in love, nothing can ever change
how you feel for each other, so
why do you need to contemplate
an antenuptial contract which will
only ever come into play in the
event of a divorce- that’s never
going to happen to you.
In South Africa Law if you do not
enter into an agreement with
your spouse prior to marriage
taking place, your marriage is
automatically regarded as being
in community of property. This
means you share everything-
assets AND liabilities. So if your
loving and caring spouse runs up
debt you are responsible for half
of that debt – you need not even
have known of the debt, it is ½
your by default and creditors can
look at you to make payment of
the amount so due. This system
may have worked years gone by
but I am of the very firm belief
that it is no longer valid in a
modern society where both
spouses may of necessity have to
work, may choose to run their
own businesses and may in the
process accumulate debt.
You cannot run the risk of bearing
the brunt of your spouse’s ill
fortune. It is far more expedient
to enter into an Antenuptial
contract and to protect not only
your own estate bit that of your
spouse too. An Antenuptial
contract can be drafted in one of
2 ways-
Without the application of the
accrual sharing system; or
With the application of the
Accrual share. Without the
accrual your estate (your assets
and your liabilities) is forever
separate from that of your spouse
– what’s your remains yours from
the date of marriage onwards.
You can still elect to purchase
that dream home together and
choose to register that in both of
your names.
Your ½ share in that property
then becomes an asset in your
estate. When you choose to apply
the Accrual system you in essence
still keep your estates separate-
what’s yours remains yours and
you are protected for any debt
your spouse may accumulate –
yet you agree that you will share
in the increased value
accumulated in your estates
whilst you are married. In simple
terms – what assets you
accumulate whilst you are
married you will share.
An ANC with an accrual allows
you to exclude assets from the
calculation of the net asset value
of your estate, so you can
safeguard your business, your
Pension Fund, or your collection
of irreplaceable and valuable
goodies. It also protects you
should you become incapable of
working or if you choose to stay
home and care for your children
and during this time not work or
improve your financial standing.
You still share in the wealth
accumulated by your spouse
during this time by way of accrual
calculation.
A word of caution- your ANC
MUST be signed and registered
BEFORE you put on that gorgeous
dress, say your vows, eat that
delicious cake and dance the
night away – if you only think
about your ANC after the
honeymoon you are too late. You
will already be married in
community of property! So make
the effort to get to our offices
and safeguard not only your own
financial future, but that of your
spouse too.
By
Lauren Anderson

5. BUYING
USED VEHICLES
AND THE
CONSUMER
PROTECTIN ACT
(CPA):
Have you ever bought a used motor
vehicle only to uncover a few weeks
later that the vehicle is not as perfect
as the salesman promised?
This is a common problem and for
most of us buying a car is one of our
biggest expenses. Over the last few
months I have had numerous calls
about various problems with used
vehicles. These include: a
windscreen falling out (how does
this even happen?), brakes failing
(dangerous!) and faulty aircons (in
this heat?).
The media hype around the CPA has
led people to believe that they have
carte blanche when it comes to
returning the goods they have
bought. The man on the street will
tell you that he can take anything
back, in any condition, at any time,
and that he can choose his remedy
– be it a refund, replacement, or
repairs. To a certain extent, this is
true. However, it is important to be
aware of WHEN, WHERE and HOW
the CPA actually applies.
Does the CPA apply to your
transaction?
The CPA ONLY applies to
transactions that occur in the
ordinary course of business. This
means that if you purchase a car in a
private sale, the CPA does not apply.
In terms of s56 (read with s55) of the
CPA, all goods sold to a consumer
are sold with an implied warranty of
quality. The warranty gives the
consumer the right to receive goods
that: (1) are reasonably suitable for
the purpose that they are intended
to be used, (2) are of good quality,
free of defects, and in good working
order, and, 3) will be durable
and usable for a reasonable period
of time. Therefore, you have the
right to receive a used vehicle that
meets the aforementioned
requirements.
If the vehicle falls-short of these
requirements then you are entitled
to the following remedies within six
months of purchase: (1) return the
goods, (2) get the goods replaced,
and (3) get the goods repaired. You
can do any of these things without
penalty; and at the suppliers cost.
When buying a used car most of us
rely on the word of the sales person
who usually tailors his speech to suit
the buyer. The purpose of the CPA is
to protect buyers from unscrupulous
salespersons who are, more often
than not, just trying to meet their
monthly target. It is therefore
important to know when you are
protected and when your purchase
falls outside the parameters of the
CPA.
Even though the s56 implied
warranty of quality cannot be
contracted out of, or revoked, there
are certain circumstances where the
consumer will be precluded from
returning the goods.
Firstly, if the consumer was made
aware of the specific defects the
consumer will not be entitled to
return the purchase based on those
defects.
Secondly, if the consumer agrees
to receive the goods in that
condition, the consumer will not be
entitled to return the purchase
based on that agreement.
Dealerships often place a
‘specifications clause’ in their sales
contract. These clauses state that
the consumer acknowledges that
s/he has inspected the vehicle and
that s/he is accepting the vehicle in
that condition.
However, the seller has to
mention defects specifically in order
to prevent the purchaser from
returning the goods. In that situation
the general ‘voetstoets’ clause will
be insufficient for the seller to get
out of the s56 warranty of quality.
But, is it defect or a failure? The CPA
provides specific definitions for each:
a defect is any material imperfection
in the manufacture of the goods, or
any characteristic of the goods that
renders the goods less useful,
practicable or safe than persons
generally would be reasonably
entitled to expect; a ‘failure’’ is the
inability of the goods to perform in
the intended manner.
In summary, if the vehicle does not
to comply with the S56 (read with
S55) requirements, the consumer
has up to 6 months after receiving
the goods to return the goods, get
the goods replaced, or get the goods
repaired. The consumer can do any
of these things without penalty; and
at the suppliers cost!
By
Stephanie-Jayne
Maher

6. Contact us:
Lister and Company
1st
Floor Marwick Terrace,
30 Old Main Road, Hillcrest,
Tel: 031 765 7477
Fax: 031 765 7476
Email:
john@listerco.co.za
garry@listerco.co.za
lauren@listerco.co.za
stephanie@listerco.co.za