After a few years of renting the tenant decides it’s time to move on. On the last day of the lease the tenant supervises the loading of the truck, sweeps the floor on the way out, returns all the keys and remotes, and waves a nostalgic goodbye to the property as the gates close behind them. All that’s left is to wait for the deposit to be returned. As the days pass the tenant becomes more anxious. Has the landlord forgotten? Or waiting to roll-over the deposit from the new tenant? Or, worse, has no intention of paying the deposit at all? After several polite then not-so-polite reminders the tenant receives a one-liner response from the landlord: the deposit is being retained to cover damages to the carpet. The tenant’s eyes widen. Seriously?
Ask any tenant, “What’s the most stressful part of renting?” and they’ll tell you it’s waiting for their deposit to be repaid. The final box has been loaded, the lost back-door key has thankfully been found, the floor’s been swept, and all keys and remotes have been returned to the owner. All that’s left is for the landlord to refund the deposit. The tenant already emailed their bank details days earlier, in the vain hope that this would expedite the payment. And now we wait. And wait. And wait. The tenant sends friendly reminders, followed by a few not-so-friendly reminders, asking for their deposit to be returned. Eventually the landlord sends a curt response: the deposit is forfeited to cover the cost of replacing the carpeting. Sorry, whaaaat??
If there’s one thing that 2017 taught us, it’s beware of the disguised agreement. False agreements created to lend legitimacy to suspect accounting practices used to evade tax. Dodgy appointment terms signed to disguise the fronting nature of companies trying to obtain BEE certificates. Convoluted consulting agreements signed with politically-connected lead generators who miraculously secure lucrative public-sector contracts in return for disproportionate commission payments. In law, we call this a simulated transaction. Which is polite wording for “dirty rotten criminal activity”. Last year we saw many dirty rotten criminals being knocked from their perches, and 2018 should be no different.
Are you paying for an SABC TV licence, but don’t own a TV? You are not alone. There are many people who are technically eligible to cancel their TV licence and yet continue to pay the annual fee year after year. Reasons for this include:
- exasperation and finally giving up on the tedious cancellation process;
- fear of prosecution;
- not knowing how to go about cancelling their licence.
If you reside in South Africa and own a working television set, you are obliged by law to pay an annual licence fee to the SABC. Even if you never use your television. A television set is defined as any device designed or adapted to be capable of receiving a broadcast television signal, regardless whether it’s been relegated to a paperweight, dust-collector or computer monitor. But what if you no longer reside in South Africa, no longer own a television set or your television set no longer works? Well, that is where the challenge comes in. The SABC is quick to accept your licence fees and issue a licence – it is, after all, “the right thing to do”. But they’re not quite as efficient or forthcoming when it comes to cancelling a licence. Indeed, their website is remarkably helpful when it comes to applying and paying for your licence. Conversely, information about cancelling your licence is almost non-existent.
As 2017 draws to the end, we look back on all that we have achieved over the past year. And what a year it has been! In the 10 years that we have been operating, we have remained ever-aware of the evolution of our industry and the changes in the way people do business. This has driven the constant changes and improvements in our site and service offerings. Undoubtedly, the highlight of our year has been launching our new-and-improved Agreements Online website – the third major redesign in our 10-year-old life.
You’re lost in a complicated thought-process and the phone rings. Absently you answer it. It’s some guy whose name you didn’t catch, asking deeply personal questions like whether there’s enough money in your bank account to cover your credit card if you die. As you politely extricate yourself from the call, you see that another wayward email has nipped through your security net – this one is trying to sell you a discounted holiday to some secluded island. As you finally kill the call and junk the mail an SMS pings for your attention – you’ve been pre-approved for a loan! You seriously contemplate using that loan for that island holiday, if for no other reason than to escape this seemingly incurable marketing epidemic. But here’s the thing: consumers are finally receiving protection against these ploys.
Once your Will has been drafted, what do you do? Here are several things to consider.
- Signing your Last Will and Testament
Once you’ve read through your Will and you’re happy with it, the next step is to sign it. Before you pick up the closest pen and merely scrawl your mark, be aware of the following requirements.
- You must sign your Will in front of 2 witnesses. You can’t sign it, then only later ask some witnesses to sign. After all, the whole purpose of being a witness is to witness! Their presence acknowledges that you did indeed sign your Will and your signature wasn’t fraudulent, you knew what you were doing and were not intoxicated at the time, and you weren’t placed under duress or pressurised by someone to sign it against your volition.
- The following people cannot sign as a witness:
- Anyone named as your beneficiary
- Anyone named as your heir
- Anyone who is married to a person named as your beneficiary or heir
- Anyone under the age of fourteen years
- Anyone who is not of sound mind or is incompetent to give evidence in court
Once your Will is signed, what do you do with it? There are institutions that offer a Will storage service, generally for a fee. But you’re don’t have to use them. The main thing is to ensure that your original Will is stored in a safe place and is easily accessible by your loved ones. It’s also suggested that you:
There are only two ways that you can die. With a Will. Or without a Will. It’s entirely your choice. But here are five reasons why we would strongly recommend that you die with a Will.
- You can appoint your executor.
When you die, somebody has to be appointed as an executor to organise all the paperwork, and generally distribute and administer your estate. Preferably someone disciplined, organised, honest, reliable and trustworthy. By drafting your Will you can identify and appoint an executor of your choice.
A common dilemma facing employers is how to address the issue of a paying a bonus or thirteenth cheque. The best solution is to address this matter head-on, in the form of your employment contracts and related company employment documents. When you draft your employee bonus procedures, you may want to consider some of these suggestions.
- Do you want to include a thirteenth cheque in your policy? A thirteenth cheque is usually (but not always) a double-salary, usually (but not always) paid in December – and South African labour law does not obligate an employer to pay 13th cheques. If you’d like to consider alternatives to the traditional 13th cheque, you could also look at:
- Including a 13th cheque as part of the employee’s annual salary package, instead of an additional payment on top of their package. The employee would then get slightly less in their monthly pay-cheque, but would get the advantage of receiving an extra “bonus” once a year. It’s a little like a forced savings scheme. It goes without saying that you would need to administer this type of concept transparently and with the full, informed consent of your employees. And be very careful if you want to raise this initiative with existing staff. They will probably be suspicious about and resistant to any radical change in the structure of their salaries, and you can’t unilaterally impose these changes on them.
- Instead of paying the thirteenth cheque in December, which can dent the cash-flow somewhat, you can agree on another month, eg. the employee’s birthday month, or the anniversary of their appointment date.
- Open a separate savings account where you can transfer money each month, processed at the same time as the payroll. This way you can save the funds needed to pay staff their 13th cheques without suffering a cash-flow knock.
- Do you want to include provision for an employee bonus scheme? A staff bonus – and whether it’s paid, the amount paid, who it’s paid to – is usually (but not always) dependent on certain criteria being met. Here are some considerations:
- Is payment of the bonus conditional on the employee meeting predetermined performance criteria? If so, does the employee know what these criteria are? And how will you measure whether or not they’ve been achieved?
- How is the bonus calculated? Is it unique to each employee? Linked to an employee’s sales targets? Or dependent on the company making a profit?
- Perhaps you can allocate an amount into an annual bonus pool. This can be split amongst the staff, either equally, in proportion to their salaries, or in proportion to their performance (objectively measured).
- Think about how much discretion managers will have in awarding bonuses to their subordinates. And what performance tools will the manager use to objectively and fairly decide who gets what?
- Paying staff bonuses can have a noticeable effect on cash-flow. You could think about easing this impact by paying the bonus in monthly instalments, or payable in two or three instalments at specified dates during the forthcoming year.
You should also include an overriding clause noting that the payment of bonuses is entirely discretionary. And if the company does decide to pay a bonus, the amount paid would also depend on the company’s profits and financial situation at the time of the payment.
Voetstoots: the common law principle
When someone buys goods, South Africa’s common law provides an implied warranty that the goods are sold free from defects. But if goods are sold “voetstoots” it means that the goods are sold “as is” and without any warranty. If it later transpires that there were defects in the goods the purchaser wouldn’t have any recourse against the seller. Except where the defect existed at the time of sale and the seller knew about it, yet failed to disclose the defect to the buyer. A sale contract containing a voetstoots clause wouldn’t protect a seller who knew about a defect but failed to disclose it, knowing that the sale may have fallen through, or the purchaser would have negotiated a reduced price. When the purchaser eventually finds out about the defect, the purchaser would have recourse against the seller to cancel the sale and reclaim the purchase price, alternatively to keep the goods but claim a reduction in the price.