proplawTHE PROPERTY PRACTITIONERS BILL IS ABOUT TO BECOME LAW !

On Friday 28 March 2019 the National Council of Provinces passed the Property Practitioners Bill. This means that the Bill will now be placed upon President Ramaphosa’s desk for signature. As soon as he signs, the Bill will become law. We don’t know yet if the Bill was passed with any amendments .

The Property Practitioners Act will replace the current Estate Agency Affairs Act. The new law will be accompanied by a set of Regulations that have yet to be published.

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Disappointingly, there is material fiscal slippage relative to the Budget initially read in February 2018. A main budget deficit of -4.4% of GDP is projected for 2018/19, compared with the initial estimate of -3.8% of GDP. The deficit increases to -4.7% of GDP in 2019/20. This compares with an estimated deficit of -3.8% of GDP for 2019/20 projected in February last year.

Following fiscal year 2019/20, the deficit does decline a little, but remains wide at -4.55 of GDP in 2020/21 and -4.3% of GDP in 2021/22.

The consolidated budget deficit also remains wide, increasing to 4.5% of GDP in 2019/20 from 4.2% of GDP in 2018/19, before easing to 4.0% of GDP by 2021/22.

Also, after accounting for the borrowing requirement of SOCs and municipalities the total public sector borrowing requirement is 6.5% of GDP in 2018/19, which declines in 2021/22, but remains elevated at 5.5% of GDP.

Worryingly, the main budget primary deficit (revenue less non-interest spending) increases to -1.0% of GDP in 2019/20 from -0,8% in 2018/19 and remains in deficit over the medium term. Accordingly, the government’s debt ratio continues to increase.

Specifically, the gross loan debt is projected to increase to 56.2% of GDP at end 2019/20 from 55.6% of GDP at end 2018/19. Note that the government’s borrowing requirement in 2019/20 is partially funded by running down its cash balances by R71.6 billion. Hence, its net debt ratio (gross loan debt less cash balances) increases faster than the gross loan debt ratio – from 49.9% of GDP at end 2018/19 to 52.3% of GDP at end 2019/20.

Ultimately, the gross loan debt ratio only stabilises in 2023/24 at a projected level of close to 60% of GDP.

Government gross loan debt

budget19-B

Source: SA Reserve Bank, SA National Treasury

The debt level, in itself is not especially high relative to GDP. However, given persistent sovereign debt rating downgrades the real interest rate government pays on new debt is high relative to GDP. Hence, in the absence of a substantial improvement in the primary budget balance, the debt level can only be stabilised over time should the real interest rate on debt decline relative to the real GDP growth rate.

But, at present, the ratio of debt servicing cost to main budget revenue continues to increase – from an already high 14.2% of revenue in 2018/19 to 15.2% of revenue in 2021/22.

The clearest path to changing this unsustainable path would be to improve South Africa’s sovereign debt ratings or to lift real GDP growth. The former is hardly likely under current conditions, while the latter is difficult given high real interest rates and a situation in which the government is absorbing a large share of available savings to fund itself.

It should be noted that the support for state owned companies is (almost) deficit neutral. But, the point is this support is preventing expenditure saving measures elsewhere from lowering the budget deficit and constraining the level of borrowing. The build-up in off-balance sheet contingent liabilities and the accompanying deterioration in the public sector’s balance sheet are now preventing the National Treasury from sticking to its fiscal consolidation path.

Government guarantees to public institutions amount to R483.1 billion of which current exposure amounts to R372.4 billion. Eskom’s guarantees amount to R350 billion (with an exposure of R294.7 billion).

Other contingent liabilities include post-retirement medical assistance to government employees (an estimated present value of R69.9 billion), legal claims against government departments (R28.7 billion) and obligations for the Road Accident Fund (which increased by R76.9 billion to R216.1 billion in 2018/19).

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New revenue raising measures amount to R15 billion in 2019/20, mainly by not compensating for bracket creep, which effectively raises personal income tax and produces an additional R12.8 billion. Meanwhile, medical tax credits are not increased, which nets an additional R1 billion in tax revenue. Changes in the general fuel levy, the road accident fund levy and the introduction of a carbon tax on fuel result in a net increase of 29c per litre in the total fuel levy. Apart from increases in excise duties (which raise revenue by R1 billion) and the “sugar” tax, additional zero rating of VAT items reduces revenue by R1.1 billion. An additional R10 billion in revenue raising measures will be announced in the 2020/21 budget.

Overall, main budget revenue increases from 25.4% of GDP in 2018/19 to 25.9% in 2019/20. Consolidated revenue increases from 28.8% of GDP to 29.3% of GDP over the same period.

Main budget balances

budget19-A

Source: SA National Treasury

Note, in tandem with improvements in tax administration the revenue raising measures announced result in an increase in tax buoyancy (growth in tax revenue relative to GDP growth) from 0.98 in 2018/19 to 1.31 in 2019/20. But, tax buoyancy has surprised on the low side in recent years, suggesting an element of risk, especially if tax administration does not improve.

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unnamed (7)You sell your house/apartment/office/factory/plot of land. You instruct your conveyancer to pass transfer to the buyer, and start dreaming of what you will do with the proceeds.
But then your lawyer says “Hang on, you didn’t give me the property’s original title deed and I need it before I can pass transfer – where is it?”

Panic! 

You can’t find it. The bank doesn’t have it (bondholders normally insist on keeping the title deeds of properties bonded to them as a security measure, at least until the loan is repaid in full and the bond cancelled). You didn’t leave it with your lawyer for safekeeping (perhaps you should have). You search high and low both at home and in the office, to no avail. Your spouse has a vague memory that you may have left it with Uncle Festus to lock away in his vault; but Uncle F died 10 years ago and his house and all his worldly goods are long gone. Or perhaps it was stored in your holiday home and went up in smoke (literally) in that bush fire in ’93? Panic!

Relax. There is – for a short while longer anyway – a quick and cost-effective remedy. Have your lawyer apply for a certified copy of the Title Deed. All you need to do is attest to an affidavit, say that a “diligent search” has failed to locate the title deed, and confirm that it isn’t pledged or held as security by anyone.

All being well, a few weeks and a reasonable legal fee later, the Deeds Office issues a certified copy of the title deed and the transfer proceeds.

Act now, before it all changes

What has thrown the cat amongst the pigeons is a recent change to the applicable Regulations which will, from 25 February, require that –

  1. Your affidavit now has to be “attested by a notary public”. A Notary Public is a specialised attorney who “notarises” documents in a formal recording and certification process that carries more weight than would attach to a normal affidavit signed before a Commissioner of Oaths. That translates into extra cost and delay.
  2. Your application must now be advertised in the Government Gazette, and for 2 weeks after publication must lie open for inspection by the public at the Deeds Registry. Again, that’s more cost. And a lot more delay.

Owners, buyers and agents: Your urgent action plan

In a property transfer, time really is of the essence. The last thing any of the parties wants is delay, or extra cost. So here’s what you should do right now –

  • If you own property, and whether or not you have thoughts of selling in the near future, this is a great time to confirm that you know where your original title deed is. If you can’t find it, ask your lawyer for help.
  • If you are buying property, forward this to the seller or estate agent with a request that they confirm possession of the title deed or act to replace it immediately.
  • If you are an agent, do the same – forward this to everyone with a property on your books (you’re doing them a favour as well as yourself).

And a note for bondholders 

The new Regulations apply equally to lost mortgage bonds, notarial bonds, registered leases, holders of real rights etc, so what is said above applies equally to you.

These new requirements kick in on 25 February, so your window of opportunity here is a narrow one.

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VZK

unnamed (6) Asof eiendom-ontwikkelaars nie in die huidige swak ekonomiese toestande genoeg uitdagings in die gesig staar nie, is hulle, hul prokureurs en ouditeure, teen einde verlede jaar  begroet met die Appèlhof uitspraak in die saak Milnerton Estates Limited v Commissioner for the South African Revenue Service (1159/2017) [2018] ZASCA 155, wat vir hul verreikende kontantvloei uitdagings mag inhou.

In this matter the Appeal Court rejected the appeal of the appellant against its challenge of an income tax assessment by SARS requiring it to include the proceeds of the sales of a number of properties deemed to have accrued to the developer in terms of section 2(1) of the Income Tax Act in the year the agreements were signed despite the fact that transfer of the properties sold was only passed in the subsequent tax period.

Die uitspraak bevestig die beginsel neergelê in ‘n vroeëre uitspraak van die appèlhof in SIR v Silverglen Investments (Pty) Ltd 1969 (1)( SA 365 (A) dat waar ‘n ooreenkoms vir die verkoop van onroerende goed ‘n opskortende voorwaarde bevat waarvolgens oordrag van eienaarskap in die Aktekantoor vertraag word tot betaling van enige gedeelte van die koopprys, word die aankoopprys geag in die belastingjaar te val wat die ooreenkoms gesluit is ongeag die appellant se finale argument dat die laasgenoemde uitspraak regtens verkeerd was omdat artikel 24(1) van voormelde wet eintlik net van toepassing is op vaste eiendom wat op krediet terme verkoop was.

Property developers should therefore take note of this judgment and its interpretation of section 24(1) of the Act and ensure that where a sale agreement falls within the scope of this provision, they declare the income from the sale in the tax year that the agreement was concluded, even if payment of the purchase price and transfer of ownership only takes place in the following tax year.

Ontwikkelaars word aangeraai om kennis te neem van hierdie uitspraak vir hul beplanning vorentoe en veral ag te slaan op die kontantvloei implikasies daarvan met betrekking tot hul inkomstebelasting opgawes. Hul moet bewus wees dat die volle opbrengs van die verkoop in hul inkomstebelastingopgawes ingesluit moet word vir die jaar waarin die ooreenkoms onderteken is,  in gevalle waar die betaling van die koopprys opgeskort word in lyn met die feite in die onderhawige saak.  Steek gerus kers op by jou prokureur en of ouditeur om onaangename verassings vorentoe te vermy.

For an in-depth discussion of this judgement and in particular the reasoning of the judges please refer to the article in “The primacy of precedent” in PWC’s Synopsis for November / December 2018, by following the link hereunder.

https://www.pwc.co.za/en/assets/pdf/synopsis-nov-dec-2018.pdf

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2590“I run a small estate agency in town. I’ve recently listened to a radio discussion that implied estate agencies will also have to be BEE compliant and get a BEE certificate. Is this true? I’m a small agency and cannot imagine that BEE compliance would be applicable to my business?”
It must be appreciated that BEE compliance has become a key aspect of doing business in South Africa. Through the application of industry sector charters as well as the pervasive impact of preferential procurement, it is nearly unavoidable in today’s times for any business to be BEE compliant. The property sector is no different, with even estate agents currently facing a situation where compliance may very soon become a real condition to being allowed to practice as an estate agent.The draft Property Practitioners Bill was gazetted on 31 March 2017 for public comment, seeking to replace the current Estate Agency Affairs Act. Section 49 of the Bill contains a list of qualifying criteria for the issuing or renewal of a Fidelity Fund certificate, and includes a new requirement that a Fidelity Fund certificate may not be issued to any property practitioner (which includes an estate agent or agency) who is not in possession of a BEE certificate.

The significance of the above requirement is that once the Property Practitioners Bill becomes law, a property practitioner will not be able to renew their Fidelity Fund certificate without also having a valid BEE certificate. Should a property practitioner, or every director or member in the case of the property practitioner being a company or close corporation, not be in possession of a valid Fidelity Fund certificate, they are not legally allowed to receive any commission, remuneration or payment in respect of or arising from the sale or lease of any property, and will also be guilty of an offence which could lead to a fine or imprisonment if convicted – serious consequences for not having a Fidelity Fund certificate, which will now also be linked to having a BEE certificate.

The Bill does not specify the specific requirements or level for the BEE certificate, so it can be assumed that a valid BEE certificate meeting the minimum level of BEE compliance will be sufficient to meet this requirement.

But, to meet the minimum level of BEE compliance and get a valid BEE certificate, an estate agent or agency will have to comply with the targets and requirements as set out in the Property Sector Code for BEE. The only exemption is where the estate agency’s annual turnover is less than the threshold set for Exempt Micro Enterprises (“EME’s”), in which case the estate agency will be exempt from having to comply with the scorecard elements of the Property Sector BEE Code (“Property Code”) and will qualify the estate agency as an automatic Level 4 contributor to BEE.

Although this sounds like good news given that many estate agencies are relatively small, it must be noted that the thresholds in the Property Code applicable to estate agents is much lower than that of the Amended Generic BEE Codes (“Amended Codes”). The threshold for EME’s under the Property Code is set at R2,5 million turnover per year as opposed to R10 million per year under the Amended Codes.

This limits the impact of the exemption to the smallest estate agencies which have an annual turnover of less than R2.5 million. The threshold for QSE’s under the Property Code is also lower than under the Amended Codes and set at between R2.5 million and R35 million, with estate agencies with an annual turnover of R35 million or more, having to report under the Generic scorecard of the Property Code. The turnover of an estate agency will be based on income or commission received by the estate agency and not the sales values of property being sold.

More than a year has passed since the publication of the draft Property Practitioners Bill for comment, and to date there is still no clear indication of when it will be formally adopted. That said, it would be dangerous for any estate agency to become complacent. Should the Bill be passed and your annual turnover is above R2.5 million you have to undergo a formal BEE verification audit in order to obtain a BEE certificate. Such verification audit is usually based on your latest completed financial year and if your BEE planning is not in place with the necessary initiatives undertaken, you may be caught off guard in the event of the Bill being finalised and not be able to renew your Fidelity Fund certificate. The Bill then determines that this may require you to repay any commission, fees or remuneration received from the sale or lease of a property, failing which you could be guilty of an offence.

Given the grave consequences of not renewing your Fidelity Fund certificate without a BEE certificate once the Property Practitioners Bill is finalised, it is advisable, where your estate agency turnover is above R2.5 million, to consult with a BEE specialist to help you plan to meet the requirements of the Property Code and be BEE compliant.

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Slogans are key elements in advertising campaigns as brand owners hope that the public will associate the slogan with their products or services and, therefore, to their brand. For this reason, the question of protection is of high importance.

What is a trade mark?

A slogan is a short phrase or a sentence that a company uses to identify itself or its products. It identifies the services or goods of one person and distinguishes it from the goods and services of another. An example would be Nike’s slogan, “Just Do It”.

  • Once a slogan has been registered as a trade mark, nobody else can use it, or one that is confusingly similar. If this happens, legal action may result.
  • A trade mark can only be protected as such and defended under the Trade Marks Act, 1993 (Act 194 of 1993) if it is registered. Unregistered trade marks may be defended in terms of common law. The registration procedure results in a registration certificate which has legal status, allowing the owner of the registered trade mark the exclusive right to use that mark.

CIPC administers the Register of Trade Marks which is the record of all the trade marks that have been formally applied for and registered in the Republic of South Africa.

What can be registered as a trade mark?

If you want to register a slogan, you must first consider of the slogan in question serves the purpose of distinguishing the goods/services of one trader from those of another trader.

  • It must not be a customary, everyday phrase that is common for people to use in your field of trade.
  • It can’t be representations of protected national emblems, such as the national flag or a depiction of a national monument, such as Table Mountain.
  • It must not be offensive or contrary to the law or good morals or deceptive by nature or way of use.
  • There are no earlier conflicting rights.

An example of a slogan or phrase that can’t be registered as a trade mark is “24 Hours”, since the expression is reasonably required for use by other traders.  If a phrase like this was trade marked, the owner of the registration would acquire the exclusive right to use this phrase and thereby prevent all other traders from using it, which is unreasonable and therefore cannot be allowed.

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Referen

2483“I recently bought a second-hand car from a local car dealership. Not long afterwards the car started giving me trouble. When I took it back to the dealership, they said it was not their responsibility as the contract I had signed transferred all responsibility to me. They showed me the contract, but most of it was printed so small that I couldn’t even read it let alone understand it. Surely I should at least be able to read a contract to be bound by it?”

We have all seen the fine print in standard form agreements, sometimes with print so small and filled with legalese that even to the trained eye, these provisions look like another language altogether. In general in our law there is a growing trend away from such fine print and legal ‘gobbledygook’ towards clearer and understandable language.

The general rule in our law in relation to contracts is that if you signed it, you are bound to it. However, our courts are slowly starting to create exceptions to this hard and fast rule. In a recent case which also related to fine print, the High Court held that if the terms of the agreement could not be read, the agreement could be unenforceable both in terms of our common law as well as falling foul of the Consumer Protection Act 68 of 2008 (“CPA”) which also requires clear and understandable language in consumer contracts.

In determining the enforceability of the agreement under the common law, the Court considered the duty to act in good faith as well as the notion of public policy. Good faith reflects the community’s conception of equity, justice and reasonableness. In this regard, the Court determined that unreadable legal writing amounts to the failure of establishing an agreement. Public policy also demands that the enforceability of an agreement must be measured against the values enshrined in our Constitution. The court held that in the specific circumstances, public policy would tip the scales of justice in favour of the consumer, as it would be difficult to prove consensus on an agreement which is not legible to the class of persons who are supposed to read and understand it. The Court accordingly found the agreement to be against public policy and therefore invalid.

What this boils down to is, that if the fine print in an agreement is so small that it cannot be read, the enforceability of the agreement can be challenged. It must be understood though that small print does not automatically make the agreement invalid. The enforceability of a contract will thus have to be established on a case-by-case basis. It does however provide grounds to challenge the validity of an agreement based on the fine print.

It is recommended that you consult your attorney regarding the enforceability of the car dealership agreement, taking into account the fine print as well as the provisions of the CPA.

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