Category Archives: Conflict Resolution

What is the talem qualem or thin-skull rule?

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cm_09_a3In situations where a wrongdoer causes some form of damage to a victim, the victim might suffer more damage than one might usually expect. This might be caused by the specific circumstances in which the victim finds himself/herself, which leads to the victim suffering more damage than the average person.

Could this be used as an acceptable defence for the wrongdoer, or must the victim’s existing circumstances be ignored when establishing the liability of the wrongdoer? An example of the above-mentioned is where the victim is in such an adverse financial position that he/she is unable to mitigate the damage caused by the Defendant.

The thin-skull rule

The case of Smit v Abrahams 1994 (4) SA 158 (K) dealt with the matter at hand and is still the leading authority relating to the aforementioned question. In the case of Smit, the Plaintiff was involved in a motor vehicle accident in which the vehicle he owned was damaged beyond economical repair. The Plaintiff not only claimed the market value of the vehicle as damages from the Defendant, but also the cost of a rental vehicle for a period of three months in order to conduct his business. The extent of the Plaintiff’s damage was therefore partly caused by his own financial position and the fact that he could not afford a replacement vehicle at the time. These type of situations are known as thin-skull (or egg-skull) cases, where the circumstances of the Plaintiff influence the amount of damages suffered. In general, the thin-skull rule dictates that a Defendant cannot use the extraordinary vulnerability of the Plaintiff as a defence. This is also referred to as the talem qualem rule. The rule is based on the principle that you take your victim as you find them.

In the judgement, the thin-skull question is discussed as part of the court’s enquiry into the issue of legal causation. With regards to legal causation it is held that a rigid approach should not be followed, but rather a more flexible approach. This flexible approach should be based on reasonableness and fairness and each case should be dependent on its own facts. The fact that the Plaintiff’s damage was partly caused by his own financial vulnerability, is merely one of the factors to be considered when establishing whether or not the damage suffered was sufficiently relevant to the wrongdoer’s conduct.

Conclusion

It was held that, considering the facts at hand, the Plaintiff was entitled to hire a replacement vehicle in order to conduct business and that this would satisfy the criterion of reasonableness and fairness. Because of the fact that the Plaintiff was not in the financial position to buy a new vehicle after the accident and a vehicle was necessary for him to conduct the business, it was regarded as fair and just that the Defendant should carry the expense of hiring a replacement vehicle.

In cases where the thin-skull rule comes into question, the court will have to determine whether it is reasonable and fair to state that the damage suffered by the Plaintiff and particularly the extent thereof, was caused by the Defendant’s conduct. The thin-skull rule, as originally contemplated and formulated, is not directly applied in South African law. However, the applicable principle, namely that the Plaintiff’s vulnerability does not serve as an acceptable defence, is considered as a factor when the element of causation is considered.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Managing disputes over a deceased relative’s estate

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If someone leaves a sizeable estate behind, it may cause conflict among the possible heirs. The help of an attorney, when settling an estate after a death, can avoid unnecessary troubles.

The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death. There are certain steps that should be taken to ensure the process is legal. However, if the estate is worth a lot of money or the deceased has children, then it is a good idea to seek the assistance of an attorney, as family disputes and debts of the deceased can be confusing. In order to this an executor will be appointed to act on behalf of the estate.

Finding the will of a deceased relative

If the deceased person left a will the first thing to do is find it. If they did not tell you beforehand where their will was, you can try calling the probate court in their district or the office of the master of the High Court to check if they have a copy of the will. Other places to call would be the deceased’s life insurance company, bank or lawyer. Otherwise, they might have left a copy of it somewhere secure in their home.

Who is the executor?

An executor is the person appointed to handle the process of settling the estate. The executor will either be mentioned in the will of the deceased or appointed by the master of the High Court. The master will ultimately decide who will take the role of executor. If the chosen executor doesn’t know how to handle the estate or is unfamiliar with the legal procedure, he or she can go to a lawyer for help. Once the executor has been chosen, the master will give them “Letters of Executorship”, which will give only them the authority to handle the estate.

What does the executor need to do?

The executor has several responsibilities such as arranging the valuation of the estate’s property and assets. They will also be responsible for contacting and dealing with all the beneficiaries.

Some other responsibilities of the executor include:

  1. Arranging provisional payments for the family’s immediate needs.
  2. Opening a bank account for the estate and depositing the estates money in it.
  3. Paying all the necessary estate duties.

It’s important that any person who wants to act on behalf of the deceased person’s estate have the Letters of Executorship. If not, their actions would be considered illegal. This also applies to the spouse of the deceased person. This eliminates the possibility of several different family members trying to influence the estate’s dealings. The executor will also decide how the assets will be divided between the heirs and if any or all assets need to be sold. If a will is in place the executor will base his/her decisions on it.

Eventually, the executor will prepare a liquidation and distribution account. This would include what will they intend to do with all the assets left after expenses. This account would be delivered to the master, who will check to see if the executor’s actions reflect the will of the deceased and that all legal requirements have been fulfilled.

Important things to keep in mind?

The master of the High Court should be notified of the deceased person’s estate not later than 14 days after the death. According to the Department of Justice a death of anyone who owned property in South Africa must be reported to the master, whether or not they died in the country.

All estates that exceed R50 000 should be reported to the master of the High Court directly because magistrate’s offices have limited jurisdiction. If reported to the magistrate’s office, estates would usually be referred to the master.

References:

  • The Department of Justice and Constitutional Development. 2012. “Reporting the estate of the deceased”. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016.
  • Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Rescission of judgement

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CM_07_A4Imagine receiving the nasty surprise that default JJ has been entered against your name because of a summons that you have never even received. It is necessary that you know the procedure of how to rescind a default judgement to get you out of this unwanted situation. Many people are confronted with the unfortunate situation of a judgement being entered against their name, without even being aware that legal action is being taken against them. The reason for this is that when a party fails to deliver a notice of intention to defend a summons, a Plaintiff is entitled to lodge an application for default judgment.[1]

The reason for many Defendants not filing a notice of intention to defend, is the fact that they simply never receive the summons initiating an action against them. Personal service of documents by the Sheriff is only required where the matter affects a person’s personal status, such as with divorces and sequestrations. As it is not a requirement for the Sheriff personally, to serve a summons on a person, it can lead to situations where the Defendant never sees the summons, although the Sheriff stated that the summons has been legitimately served.[2] An example hereof many people who indicate their domicilium citandi et executandi or nominated address where notices are sent, in an agreement. In the event of the Defendant moving, the Sheriff will still deliver the summons to this address, but the Defendant will never receive it.

In the event of a Defendant not receiving a summons, certain steps have to be taken to have the judgment rescinded. The Defendant has to serve and file his application for rescission of judgment within 20 days after becoming aware of the judgment that was entered against him.[3] The Defendant (now the Applicant) is required to set out in an affidavit why the matter was not defended and what the bona fide defence is to the claim. The onus is upon the Applicant to set out legitimate reasons for why the matter was not defended.[4]

When bringing an application for the rescission of judgement before court, the following principles are applicable:[5]

The Applicant must give a reasonable explanation for his default. The court will be unwilling to help the Applicant if it is found that he was aware of the proceedings against him or if the default was simply due to his own negligence. If the Applicant’s default is of a wilful or negligent nature, these will serve as considerations that the court will take into account when deciding whether an application should be granted.

In many cases an Applicant simply rescinds a default judgement to delay the inevitable. It is therefore necessary for the Applicant to show that he is not simply delaying the Plaintiff’s claim. A bona fide defence, in other word a genuine defence, must therefore be shown, although it is not required to deal fully with the merits thereof or produce any evidence in this regard.

Ultimately, the court has discretion whether to rescind the default judgment or not, based on whether good cause was shown by the Applicant.[6]

Although it involves an unwanted and often lengthy and expensive process, it is important to have any judgments against your name rescinded as soon as possible, as they have a negative impact on your credit rating. These judgements, if executed, will also leave you highly annoyed when the Sheriff shows up on your doorstep with a warrant of execution to seize your personal belongings.

[1] Magistrates Court, Rules of Court, Rule 12(1)(c)

[2] Magistrates Court, Rules of Court, Rule 9(3)

[3] Magistrates Court, Rules of Court, Rule 49(1)

[4] Du Plessis v Tager 1953 (2) SA 5 (O)

[5] Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O)

[6] De Witts Auto Body Repairs v Fedgen Insurance Co Ltd 1994 (4) SA 705

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

I bought something that doesn’t work

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CM_06_01Sarah buys furniture from Mark who promised her that the furniture is of good quality. However, he doesn’t notify her about problems with the furniture. Later, Sarah discovers that some of the chairs she bought have faulty joints, meaning they can’t be used properly. This is what’s called a latent defect and Sarah will be able to claim from Mark for the furniture not fulfilling its purpose.

A patent defect or a latent defect?

A patent defect is when there’s a problem with a purchased item but it was clearly visible and obvious to the buyer when the contract was signed. If the furniture that Sarah bought had a patent defect, such as a chair leg missing, it would be assumed that she knew about it and the law would not protect her.

NOTE: A defect is something that makes the product less useful or completely useless. A product not looking as good as you thought is not a defect. A piece of furniture with a stain on it can still be used normally. If the product has broken or missing parts, meaning it can’t be used properly, it’s a defect.

If the product you bought has a defect affecting its usability and purpose, then the seller is liable and you as the buyer can claim from them. You should also take into account if the contract had a “voetstoots” clause, meaning that you are buying a product based on its appearance or “as is”. If this is the case the seller would not be held accountable for any defects with the product, latent or patent.

What can I get back from the seller?

If the product you bought has a latent defect you can get a price reduction or a refund for the price you paid. A price reduction is the difference between the price you paid and the true value of the product. A full refund includes the price you paid, interest, maintenance costs and the cost of receiving the product. A full refund would also mean that you need to return the product that you got under the contract.

If a defect has caused you harm or damaged your property, for instance, you could possibly also claim this amount as compensation from the seller.

Who is a trader and who is a seller?

It’s important to keep in mind that there’s a difference between someone who is a trader and a seller. A trader is someone who makes a living from selling products, whereas a seller is an ordinary person like Mark in the example above. A trader who specialises in particular products and boasts having a specialized knowledge is held to a higher standard than an ordinary seller.

Sales talk or latent defect

It’s normal for sellers or traders to do the best to sell their product. This usually means “sales talk” or boasting about the products value and usefulness. They are allowed to do this, however, if they make statements about the product that turn out to be false, such as claiming the product can do something that it actually can’t, the law will be in your favour and protect you in the same way as a latent defect.

Before you agree to buy anything from a seller or a trader make sure you inspect the product first and make note of any defects there might be. If you neglect to inspect the product it could be more difficult for you to get compensation from the seller if there is a problem in the future.

Reference

“What you should know about Contracts”. 2009. The Western Cape Office of the Consumer Protector. Department of Economic Development and Tourism. Accessed from: https://www.westerncape.gov.za/ on 13/05/2016.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Maintenance

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A3BWhat can you do to enforce a maintenance order against a person who is responsible for paying maintenance, but fails to do so or is paying too little?

When someone fails to pay maintenance in terms of a maintenance order you have the option of lodging a complaint against them with the Maintenance officer, stating that the person is legally liable to maintain, for example, yourself or your minor child(ren) and is not doing so. The Maintenance officer must investigate the complaint and may then institute an enquiry in a maintenance court. The Maintenance officer, not the complainant, decides whether to institute an enquiry.[1] In investigating a complaint about maintenance, the Maintenance officer may obtain statements or any relevant information pertaining to the payment of maintenance. An enquiry under the Maintenance Act is a procedure which empowers people to enforce their rights and those of their child(ren) at the State’s expense. During the course of a maintenance enquiry the parties usually come to an agreement and seek to withdraw the proceedings, or have the terms of the agreement made an order of court, which cannot be disregarded by the magistrate.[2] If the parties cannot come to an agreement the matter will be referred to the maintenance court.

Whenever a person against whom a maintenance order has been issued under the Act fails to make any payment in accordance with that order, the order is enforceable in respect of any amount that person has failed to pay, together with any interest:

  1. by execution against property;
  2. by the attachment of emoluments; or
  3. by the attachment of debt.

If a maintenance order made under the Act remains unsatisfied for a period of ten days from the day on which the amount became payable or the order was made, the person in whose favour the order was made may apply to the maintenance court in which the order was made: 1) for authorisation of the issue of a warrant of execution, 2) for an order for the attachment of emoluments or 3) for an order for the attachment of debt. The application must be accompanied by a copy of the maintenance order or other order in question and a statement under oath stating the amount that the person against whom the order was made has failed to pay.[3]

Subject to the defence that failure to make a payment in terms of a maintenance order is due to a lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of an offence and liable to conviction with a fine or imprisonment for a period not exceeding one year, or to imprisonment without the option of a fine.[4]

On the application of the public prosecutor and in addition to or instead of imposing a penalty, a court convicting any person of the offence of failing to make a payment in accordance with a maintenance order may grant an order for recovery from that person of the amount he or she has failed to pay, together with any interest.[5]

Your best option would be to approach the Maintenance officer in order to reconcile the outstanding amounts. Thereafter, if the person still fails to effect payment, you can approach an attorney to either proceed with execution of the order, if the person has sufficient movable or immovable property, or obtain an emolument order which will be served upon the employer of the person (ordering the employer to pay the maintenance), or you may approach the maintenance court for an order for the attachment of any debt accruing, then or in the future, to the person responsible for paying maintenance.

[1] The Maintenance Act 99 of 1998.

[2] Young v Young 1985(1) SA 782 (C).

[3] The Maintenance Act 99 of 1998.

[4] Ibid.

[5] Ibid.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Trouble with the neighbours

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A1BYou and your neighbour have been good friends for years; your children have grown up together and you have always thought of him as a reasonable man, but lately you’re not so sure. His trees’ branches overhang into your property, blocking your gutters with leaves, not to mention the root system creeping closer to your home’s foundation. When you confront him, he flatly refuses to do anything about it, since they are, after all, trees he and his wife planted when they bought the property 30 years ago!

The question in everyone’s mind is, what can I do about my neighbour’s trees and plants that are causing damage to my property and discomfort to me? He most certainly has the right to do on his property as he pleases, but what about my right to use and enjoy my property? Surely his enjoyment cannot be at the cost of someone else?

Trees with lateral root systems are often a culprit in neighbourly disputes. In the case Bingham v City Council of Johannesburg 1934 WLD 180, the municipality planted trees along the footpath for beautification purposes. The problem was that they chose to plant oak trees, which have strong lateral root systems that drain the soil surrounding them. The flowers and shrubs in Bingham’s garden died as a result of this, and even worse, the strong root system was making its way to the foundation of his home. Due to the threat to the property (the house) the court ordered the municipality to remove the trees.

In Vogel v Crewe and another [2004] 1 All SA 587 (T) the issue regarding roots was also discussed in court. Vogel and Crewe were neighbours and Crewe was of the opinion that a tree planted about two metres from the wall, separating the two properties, was the cause of all the problems on his property. According to him the tree’s root system was causing damage to the boundary wall and leaves from the tree were falling into his swimming pool and blocking his gutters and sewage system. The court’s approach was based on an objective test of reasonableness. They took into account the benefits of protecting the tree, being its visual pleasure, shade, and the oxygen it produced, as opposed to the trouble it was causing Crewe. Crewe was not able to prove that the problem with the leaves in his swimming pool, gutters and sewage system was caused by the tree in question, and the court found that the wall separating the two properties could easily be repaired. No drastic action, like removing the tree, was necessary and Crewe failed in his application.

From the above it is clear that the court will only order the removal of a tree should the roots pose a real and immediate threat of damaging the property. They will not order the removal of overhanging branches for the shedding of leaves.

In Malherbe v Ceres Municipality 1951 (4) SA 510 A it was confirmed that should a neighbour’s tree branches overhang or the roots spread into your property and the owner refuses to remove same, you may chop them off on the boundary line.

Hopefully you will be able to resolve tree-related issues with your neighbour in a courteous way, and remember, you also have the right to enjoy your property.

References:

  • Bingham v City Council of Johannesburg 1934 WLD 180
  • Vogel v Crewe and another [2004] 1 All SA 587 (T)
  • Malherbe v Ceres Municipality 1951 (4) SA 510 A

This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).