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Are property transactions protected by the CPA?

Are property transactions protected by the CPA

Introduction

The introduction of the Consumer Protection Act 68 of 2008 (“CPA”) was welcomed by many when it came into full effect on 1 April 2011, but it has, in some instances lead to confusion with regards to its applicability to certain transactions.

Some may believe that the CPA provides a manner of “blanket protection” in all commercial transactions and scenarios. But there are some instances where the CPA will not afford protection and consumers need to be aware of when and where this might be to ensure they do not rely on a law that is not applicable and of effect.

One of these instances is property buy and sell transactions. Despite the fact that the CPA does affect the rights of property buyers and sellers, it has in some scenarios led property buyers to believe that they are entitled to the aforementioned blanket protection, which would cover any transaction they are involved in. This is however a common misconception.

Property transactions in which the CPA does not apply
In property dealings, most transactions do not fall under the application of the CPA. One such transaction is the sale of a residential property by its owner by means of a private treaty, i.e. with a standard Deed of Sale or Offer to Purchase. In these cases, the sale agreement is not covered by the CPA because, legally, the seller cannot be classified as a “supplier”.

The CPA defines “supplier” as “a person who markets any goods or services” and “supply” as:
a) in relation to goods, includes sell, rent, exchange and hire in the ordinary course of business for consideration; or
b) in relation to services, means to sell the services, or to perform or cause them to be performed or provided, or to grant access to any premises, event, activity or facility in the ordinary course of business for consideration.

It is clear from these definitions that a normal seller, who sells his or her home, is not a supplier in terms of the CPA. This, naturally, leads to considerable frustration for a buyer who has neglected to thoroughly inspect the property he or she is about to purchase, with the belief that he or she is fully protected by the CPA.

When moving into the property after registration thereof in the buyer’s name, it becomes clear that there are serious defects that were never disclosed by the seller, but they can no longer hold the seller responsible.

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Delivering a Section 129 Notice to a Consumer

Delivering a Section 129 Notice to a Consumer

In terms of the National Credit Act1 (hereinafter the “Act”), when a consumer has defaulted on a payment, the credit provider must first notify the consumer in writing of the default and provide him or her with the opportunity to rectify the default within a certain amount of days in terms of Section 129 of the Act. The consumer is considered in default if his or her account is 20 business days in arrears. In this notice, the credit provider must propose that the consumer refer the credit agreement entered into to a debt counsellor or a consumer court or an ombudsman, with the necessary authority to handle any possible disputes. The purpose of such a referral, is to enable the consumer and the credit provider to resolve the matter, or agree to a plan to bring the repayments up to date. A credit provider cannot take legal action against a consumer before first notifying the consumer of the default and to drawing the consumer’s attention to his or her rights.

The Constitutional Court, in Moshomo Levin Kubyana v Standard Bank of South Africa Ltd2, determined what steps a credit provider must take to discharge its obligation to effect proper delivery and ensure that a Section 129 notice reaches a consumer before commencing with litigation.

In the above matter, Standard Bank delivered the Section 129 notice by registered post to the branch of the Post Office which Mr Kubyana had chosen as his domicillium address. Even though two notifications were sent to his home, requesting that he collects his registered mail, he never did so. Five weeks later, the notice was returned to Standard Bank uncollected. The respondent subsequently issued summons out of the High Court for cancellation of the agreement, the return of the motor vehicle, and payment of damages in terms of the agreement. The Applicant filed a special plea, claiming that the Court had no jurisdiction to hear the matter because the respondent had failed to comply with its obligations in terms of Section 129 of the NCA.

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The importance of not settling for that “one-pager” agreement

The importance of not settling for that one-pager agreement

Introduction
Starting a business can be hard, but negotiating in the business world is often even harder. Putting your contracts and agreements in place from the start will avoid unnecessary pitfalls in the future – everyone can agree to this. Unfortunately, it is at this point where business owners, with start-up costs at the back of their minds, often believe that comprehensive and well drafted contracts are too expensive and unnecessary. There is an overwhelming amount of business owners that think the infamous “one-pager” is as effective as a tailored contract.

In my practical experience, the not properly constructed or thought through one-pagers often lead to more devastation than not having any agreement in place at all. Legal practitioners are regularly confronted with requests for short one-page agreements or templates from the internet that basically merely contains boilerplates and irrelevant legalese.

So what is the problem?
Contracts are fundamental in business and are meant to regulate and define the boundaries of the manner in which parties interact with each other. A contract is meant to be a meeting of the minds – the parties mutually agree to the terms and conditions.

The main problem with these one-pager agreements is that they do not properly reflect the true intention of the parties and further, more often than not, the material terms of the contract are omitted.

As a general rule of written contracts, terms and conditions may not be amended unless the parties agree thereto in writing. This leads thereto that the parties are locked into this agreement and when a dispute arises; they are unable to amplify the terms and conditions with extraneous evidence.

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SchoemanLaw enters into landmark partnership with Western Cape Business Opportunities Forum (WECBOF) to change the face of SMME growth in the Western Cape

In an entrepreneur’s life, access to speedy and reliable legal services are crucial. Legal solutions must keep up with the pace of a business and if it can’t, the reality is that it is not considered at all. If not considered, there is a real risk which, statistically, is one of the main causes of business failure. In the case of a start-up or SME, this often means the end of an idea or a dream.

According to Nicolene Schoeman-Louw, the Managing Director of SchoemanLaw Inc, “The fact is that for too long legal services have been out of reach for many SME’s and start-ups. As a result, many have gone without these essential services, often with dire long-term consequences, or have resorted to using free templates from unreliable sources with no guidance on use or completion thereof. So, even if documents were obtained – they are often incorrectly utilised or completed, which renders it completely useless.”

The SchoemanLaw SME Self- Service DeskTM aims to address this and fill the gap by providing an affordable and reliable professional solution to start-ups and SME’s. The firm is an innovative Cape Town based law firm, who are launching this disruptive technology in celebration of its 10-year anniversary. The launch, where the solution will be made available directly to the public, is scheduled for 1 December 2017.

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Lead with Integrity

Leading with Integrity

Before I write about the topic of integrity I just need to add a little disclaimer in order to avoid any beat up sessions I might get from the locals around here. I do not always get it right, I have made many mistakes but have learnt from them and grow from these mistakes daily. These ideas around integrity are what I have learned in my short span of studies and in the experiences I have had in my own life. Having integrity in your life can really be a game changer, as it gives you a clean conscious and can build your reputation more than cutting corners can. You might get ahead by playing it dirty but eventually it will catch up to you and it can make you lose everything important to you. Leading with integrity can be tiring, frustrating and seem like you are missing out, but in reality integrity in your life, business and relationships can make or break your legacy. In this blog we will be discussing a few tips and pointers on how to live with integrity.

Integrity is a choice
Choosing integrity is a practice that should become a habit. Integrity does not always come naturally. It is in our default nature that we choose otherwise. We have to make sure that we have enough self-awareness to make correct choices that are filled with integrity. We have to train our minds to choose integrity daily. If we don’t intentionally train ourselves we run the risk of making bad decisions instead of good ones.

Why should you choose integrity?
Firstly we should choose integrity because integrity will always build up your personal brand and your business. Making decisions with integrity in mind will always build your reputation and never break it. It can also create a positive snowball effect in your business or organisation.

A common thread that we see in business or in an organisation is that we attract who we are. So if we are attracting strong leaders and clients it is because we are leading in a higher capacity. The same goes for leading with integrity, if we lead with integrity, we will attract leaders and partners who have the same values and ideas that we have. The more people who adopt the same values and ideas that you have, the more the organisation becomes stronger and concentrated.

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