“Nuisance usually involves repeated infringement of the Plaintiff's property rights. An objective weighing up of the interests of the various parties, taking into account all the relevant circumstances is required in these matters” (from judgment below)
If the dog-next-door’s incessant barking is destroying your quality of life, read on. A recent High Court case illustrates our law’s approach to protecting you from noisy neighbours generally.
The Chihuahua’s Tale
4 things to try before you rush off to court
Going to court should be a last resort – here’s how the Judge in this case began his judgment: “It is to be deprecated that a High Court is burdened with such a dispute as the present one and it is equally deplorable that the parties cannot themselves resolve an issue of this nature”. Getting on the wrong side of a tetchy Judge is never going to be a smart move.
Whatever you do, don’t suffer in silence – our law will help you!
“Creditors have better memories than debtors” (Benjamin Franklin)
When you are struggling to recover your money from a recalcitrant debtor company, applying for its liquidation can be a very powerful collection tool. Suddenly the directors are faced with the imminent prospect of completely losing control of their company, its business and its assets to a liquidator. If the directors are just fighting a rearguard action to delay paying you, a liquidation (or “winding-up”) application should immediately focus their minds on finding a way to settle the debt.
But be warned – this only works with undisputed debt. A recent SCA (Supreme Court of Appeal) case illustrates.
A R9m claim disputed
Defending the claim – what a debtor must prove
The SCA confirmed that, in order to defend a liquidation application, an alleged debtor needn’t prove that its defence to the claim will succeed at trial. On the contrary, all it has to prove is that it disputes the alleged indebtedness on grounds that are both –
Bona fide (genuine, in good faith, without intention to deceive).
The court will decide, on the basis of the documents filed with it, whether or not the alleged debtor has raised facts which, if proved at a trial, would constitute a good defence. If the defence is “not unreasonable” and if “a lack of bona fides cannot readily be inferred from the papers”, the liquidation application is likely to be dismissed.
A clear lesson for creditors
“In essence”, held the Court, “the matter serves as a stark reminder that winding-up proceedings are not designed for the enforcement of a debt that the debtor company disputes on bona fide and reasonable grounds”.
So whilst a liquidation application can be a formidable weapon to use against a problem debtor, if you apply on the basis of a disputed debt you are probably just wasting your time and money, putting yourself in the wrong unnecessarily, and risking an adverse costs order (on a punitive scale if you are found to have “abused the court process”).
Note: What follows is of necessity just a general summary of some complex provisions, there are various exemptions and exceptions (such as possible zero-rating of going concern sales), and many traps for the unwary. So take specific advice on your particular circumstances.
Whether you are the buyer or the seller of property, one of you is going to be paying SARS for the privilege, and you risk a very unpleasant and unbudgeted surprise if you don’t clarify before you enter into the sale exactly who is liable for what.
Both the status of the seller and the nature of the sale are key here. In broad terms –
|Transfer Duty Rates|
|Value of Property||Rate|
|R0 - R750,000||0%|
|R750,001 - R1,250,000||3% on the value above R750, 000|
|R1,250,001 - R1,750,000||R15,000 +6% of the value above R1,250,000|
|R1,750,001 - R2,250,000||R45,000 + 8% of the amount above R1,750,000|
|R2,250,001 - R10,000,000||R85,000 + 11% of the amount above R2,250,000|
|R10,000,001 and above||R937,500 + 13% of the value exceeding R10,000,000|
Minister of Finance Pravin Gordhan makes his Budget Speech on 22 February and would like to hear your thoughts and ideas for the 2017 National Budget. Go to "Budget Tips" to submit your suggestions, and to the National Treasury website for more.
“Whosoever desires constant success must change his conduct with the times” (Niccolo Machiavelli)
The most successful small businesses are always going to be those that best adapt to change by seizing the new opportunities that it always brings.
So what’s in store for us in 2017? For an overview of some scenarios, and for some very interesting thoughts on how we can profit from them this year, see “South African small business opportunities in 2017” on the Cherryflava website.
“Adulting”, n. “The practice of behaving in a way characteristic of a responsible adult, especially the accomplishment of mundane but necessary tasks”
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