Legal Costs Explained – Body Corporates and Home Owners Associations
1. A defaulting owner is a common headache for a body corporate or home owners association, we at Coenraad Kukkuk Attorneys make it our business to assist in the resolution of such disputes on behalf of our clients. In so doing we have come across some frequently asked questions surrounding the legal fees, which we will now address in this circular.
2. The general rule is that the defaulting owner is responsible for the legal costs which result from the collection proceedings. This rule is established and enforceable through Regulation 25(4) of the Management Regulations in terms of the Sectional Title Schemes Management Act 8 of 2011 or the equivalent provision in the memorandum of incorporation of a home owner’s association. Regulation 25(4) reads as follows:
“A member is liable for and must pay to the body corporate all reasonable legal costs and disbursements, as taxed or agreed by the member, incurred by the body corporate in the collection of arrear contributions or any other arrear amounts due and owing by such member to the body corporate, or in enforcing compliance with these rules, the conduct rules or the Act.”
3. However, the body corporate remains the litigant. The litigant in any legal proceedings remains responsible for payment of the legal costs as per the mandate between the Attorney and the client unless there is a cost order granted by the Court (refer to paragraph 8 below for further explanation). The above Regulation does provide some relief for the body corporates in this regard but unfortunately does not completely remove the liability of the litigant.
4. As a result of the above, body corporates and home owners associations are ultimately liable for cost of the litigation. There may be some relief in terms of the Regulation 25(4) however, this does not limit the liability of the litigant.
5. Furthermore, it is vital to understand the difference between the varying cost scales. Firstly, we consider “attorney and own client” as a costing scale. This refers to the costs properly incurred by the litigant’s legal representation and agreed upon in terms of the mandate. “Attorney and own client” is also referred to as the costs of remuneration.
6. Secondly we consider “attorney and client” as a costing scale. This refers to the costs recoverable from the opponent as compensation for the loss sustained. With the above in mind, the relief provided by Regulation 25(4) is seen as the recoverable costs. Attorney and client scale is also referred to as the costs of contribution. As a general rule the court can order costs to be paid by either party on attorney and client scale, which is typically lower than attorney and own client. This is generally dependant on the finding of the court.
7. However, due to Regulation 25(4) a court order is not necessary to make the costs recoverable, they are automatically recoverable by the body corporate or home owners association due to the above legislation. This places the Body Corporates or Home Owners Associations in a more favourable position than that of a standard litigant as relief is provided by the regulation. In the event that “attorney and client” scale is less than “attorney and own client” the litigant will be liable for the difference as per the Mandate. As such “attorney and client” is known as intermediate costs as it is higher than party and party scale but lower than “attorney and own client” as a costing scale.
8. Lastly, the “party and party” scale is regulated by legislation and published in the Government Gazette. This scale is outdated and rarely used. However, in the event of taxation, it is the basis for the tax master as it is a form of recoverable costs but lesser than that of “attorney and client”. The principle with this recoverable cost remains the same as above; the litigant is ultimately responsible for the cost of litigation and so the difference between the taxed bill of cost and the cost between attorney and own client as per the mandate.
9. Thus, in the event that the account is taxed, the litigant is liable for the difference, if any, between the taxed bill of costs and the account in terms of the mandate.
10. In terms of the Sectional Title Schemes Management Act 8 of 2011 a body corporate has the duty to reserve funding in order to enable that body corporate to fulfil its obligations. In the current context that would be to collect the levies of the owners. Thus body corporates are not privileged litigants and remain liable for the cost of litigation. The silver lining for a body corporate is the relief provided by Regulation 25(4) as above.
– by Mienke Richter, Candidate Attorney
(With recognition to Albert Reinecke’s article in De Rebus – see here http://www.derebus.org.za/recovery-body-corporates-legal-costs/)
‘Contesting the validity of a will – applicable legislation and case law’ by Johan Barkhuizen, Candidate Attorney at Coenraad Kukkuk Attorneys
In approaching the legal question of how one contests the validity of a will it is important to note that under South African law, no person has an inherent right to inherit (which should not be confused with the rules of the laws of succession in South Africa). South African law rather focuses on the freedom of testation, in other words, the law is oriented towards protecting a person’s right to decide how he or she wishes his or her estate to be divided and administered. The law also provides that a will, which at face value seems complete and regular, will be seen as valid and as such the burden of proof, as is usually the case in civil matters, is one based on a balance of probabilities, and this burden to prove on a balance of probabilities that the will is not valid rests on the one alleging that the will is not valid. It is due to this burden of proof that to successfully contest a will is a difficult process that does not often succeed.1
Grounds upon which the validity of a will may be challenged
There are four general grounds upon which an accusation of invalidity may be based. These four grounds are:
- A lack of the requisite formalities;
- Testamentary capacity;
- Undue influence
The above is not a closed list and there are some other grounds upon which to base a claim that any particular will is not valid, but these grounds involve aspects more related to disqualified beneficiaries and provisions in the will that are contrary to public policy.
A lack of the requisite formalities
The Wills Act 7 of 1953 has in the past caused some confusion due to its requirement that strict adherence to the formalities be observed. The Law of Succession Amendment Act has however eased this burden to some extent. Where a person intends for a document to be his or her will, the court will order the Master of the High Court to accept the document, provided some core formalities are met. It is important to note that the courts do not have a general discretion to condone and make allowances for non-compliance with prescribed formalities that need to be observed.
Section 2(3) of the Act2 has caused further confusion in regards to the requirement that the will or document had to have been drafted by the testator. On one hand we have a generous interpretation of “drafting” whilst others favored a more literal interpretation, essentially arguing that the document had to have been drafted by the testator and not by a 3rd party, such as an attorney.
In the case of Bekker v Naude3 the court finally settled the matter and concluded that the literal or “strict” interpretation to be the correct one. In other words the testator must have drafted the document himself. This reasoning was founded on the legal principal of interpretation whereby the ordinary meaning of a word must be given to a term unless otherwise indicated by the legislature or where giving such an ordinary meaning would lead to inconsistency or absurdity.
Forgery can be a ground upon which the validity of a will can be challenged. This occurs not only where the document purported to the will of the testator has been forged but also where a will, which on the face of it appears valid, bears a forged signature of the testator.
The forgery of a signature of a will can have the effect that the guilty party be excluded from the inheritance4, having the effect that not only those who played a part in the death of the testator can be excluded, but also those who seek to defraud the other beneficiaries of the will.5
In terms of Section 4A of the Act, persons who sign as a witness on the will or who have, in any manner , in their own hand, drafted part of the will, will be excluded from inheriting from the will, and the spouse of a person so disqualified will also be rendered incapable of being a beneficiary.6
Section 4 of the Act provides for the general requirements a testator must meet in order to be seen as having “testamentary capacity”. These factors involve the age of the testator, sufficient mental capacity to understand the nature and consequences of the act and recollect his relations and those affected by the will.
The important moment in time to consider here is that moment the testor created and signed his will, not necessarily when instructions were given for the will to be drawn up. In order to determine if a person possessed the necessary capacity the test employed is the one used in Banks v Goodfellow7 which reads as follows:
“The testator must be possessed of sound and disposing mind and memory. But his memory may be very imperfect and yet his understanding maybe sufficiently sound for many of the ordinary transactions were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will.”
Thus even if a person has diminished or impaired intelligence, provided that he or she has sufficient mental fortitude to understand and appreciate the testamentary act, he will be seen as possessing capacity.
The provisions, terms and wishes of the testator, as contained in his or her will, must be as a result of the exercise of his or her own volition. Should a will be a result of compulsion or where the free expression of the testator is somehow impaired, the will can be rendered invalid.
Certain acts, such as extraordinary love, tolerance of continual humiliation, direct requests and unusual affection does not necessarily constitute undue influence.8 In order to establish undue influence, the acts involved should be akin to fraud or coercion, in other words, need to be of a serious nature. In evaluating the actions that might have led to undue influence, the court will test to see if there has been a displacement of the volition of the testator, to such an extent that the will no longer reflects the wishes of the testator, or alternatively contains the wishes of a person other than the testator.
The courts will take into account a number of factors in order to establish the possibility of undue influence, such as the mental state of the testator at the time of the signing of the will, the relationship between the testator and those persons concerned and surrounding factors.
In the matter of Katz v Katz9 the courts had to evaluate a claim wherein it was alleged that the second wife of the testator unduly influenced him to create a new will. The court stated that all such allegations had to be accompanied by evidence, as mere speculation and suspicion that was unfounded is insufficient. The court also pointed out where a period of time passes after the will was executed wherein the testator could have altered a will, but he fails to do so, it can be inferred that it was not made against the will of the testator.
– Johan Barkhuizen
1 Kunzs v Swart and Others 1924 AD 618
2 Wills Act 7 of 1953
3 Bekker v Naude en Andere 2003 (5) SA 173 (SCA)
4 Pillay and Others v Nagan and Others 2001 (1) SA 410 (D)
5 Roman-Dutch Law Maxim : De bloedige hand neemt geen erf
6 Blom and Another v Brown and Others  3 All SA 223 (SCA)
7 Banks v Goodfellow 1870 LR 5 QB
8 Spies NO v Smith en Andere 1957 (1) SA 539 (A)
9 Katz and Another v Katz and Others  4 ALL SA 545 (C)
‘SA First Climate Change Case’ by Lauren Christie, Intern at Coenraad Kukkuk Attorneys
Earlier this month the North Gauteng High Court made a landmark ruling in favour of non-profit organisation EarthLife Africa (ELA). This is South Africa’s first climate change lawsuit.1
The chief director of the Department of Environmental Affairs granted Thambametsi, a proposed 1200MW coal-fired power station in Limpopo, environmental approval. ELA then sought to appeal the Departments decision but the Minister of Environmental Affairs upheld the decision. The organisation challenged the Environmental Affairs Minister’s rejection of its appeal against the approval given to a proposed Thabametsi.2
ELA argued that the minister granted authorisation without proper consideration of the climate change impacts on the environment. They presented information that station would dramatically increase the greenhouse gasses to be released in an already ecologically vulnerable area. There was also no assessment of the impact of the coal-fired power station on the already strained water situation in the province. Water, an already scarce resource, will increase in scarcity due to the negative impact on climate change.3
The court ruled that these effects ought to have been considered when the minister made her decision. Judge John Murphy stated that the environmental affairs ministry must conduct a complete climate change assessment before construction of the plant can proceed. The Minister, Edna Molewa, must reconsider her decision, taking into account a full climate change impact assessment report, a paleontological impact report and all public comments received.4
Makoma Lekalakala of ELA says: “We welcome this judgement, which sends a strong message to government and to all developers proposing projects with potentially significant climate change impacts in South Africa that permission cannot be given for such projects unless the climate change impacts have been properly assessed. South Africa is a water-stressed country, and the Waterberg, where the power station would be located, is a particularly water-stressed area. Climate impacts are a big deal for communities and farmers who depend on the limited water available.”5
He continued “We now call upon the Minister to give full and proper consideration to Thabametsi’s climate change impacts – which the project’s environmental consultants have found will be significant – in making a decision on whether to uphold Earthlife’s appeal.”6
– Lauren Christie
1 Victory in SA’s first climate change court case! Centre for Environmental Rights 8 March 2017
2 Earthlife Africa Johannesburg v The minister of Environmental Affairs and others 2017 http://cer.org.za/wp-content/uploads/2017/03/Judgment-Earthlife-Thabametsi-Final-06-03-2017.pdf
3 Earthlife wins SA’s first climate change court case Fin24 News24 9 March 2017
4 First climate change court victory in SA Cape Times 8 March 2017
5 Note 1 as above.
6 Note 1 as above.
You, religion and the law – Coenie Kukkuk takes a closer look
Gay people all over the world have often been subjected to the wrath of over-zealous and mostly fundamentalist religious groups. It is repeatedly said that homosexuality is “wrong” or even “unlawful” because the Bible or the Qu’ran or Torah “says so”.
What is the actual standing in law in South Africa of these books or of religion per se?
A good example of the conflict between religion and the law is the struggle for gay equality in marriage. It is often not well understood that marriage in South Africa, despite the enactment of the Civil Union Bill, is still not equal – that there still is a legal distinction between heterosexual marriages and same-sex civil unions. Despite the Constitutional Court’s directive that the Marriage Act of 1961 be amended, and if not done, the words “or spouse” be read in, the government chose to ignore this instruction and enacted the separate, but equal, Civil Union Act. The old Marriage Act of 1961, which allows only for marriage between one man and one woman, is still in effect and remains law. A same-sex marriage may still not be entered into under the old act. Parties who wish to be married under this act for sake of equality will have to bring an application to court for confirmation that the words “or spouse” are now deemed to be written into the act and thus applicable to all. This won’t be easy – ask Ms Fourie and Ms Bonthuys about their long legal struggles to have marriage for same-sex couples legally recognised. (We owe them much!)
The reason for the distinction is, in fact, religion, when carefully considered. After the Department of Home Affairs reluctantly held consultations with the populace throughout South Africa, where the general feeling was overwhelmingly against gay marriages, it gave them enough ammunition to retain the Marriage Act of 1961 unchanged, and introduce the Civil Union Bill to (according to them) adhere to the Constitutional Court directive.
It means, in effect, that the Marriage Act exists mainly for heterosexuals who see marriage as a sacred religious institution to the exclusion of gays, and that the Civil Union Bill exists for same-sex couples and those heterosexuals not wishing to be burdened with the “outdated” label of “marriage”, or “religious marriage”.
In South Africa, religion and the law came head to head on the issue of gays in the landmark decision of Grobler vs Moreleta Park NG Kerk. Johan Grobler was appointed as music teacher in the 17 000-strong so-called liberal Dutch Reformed congregation of Moreleta Park in Pretoria. This congregation has previously raised the ire of gay groups with their notorious H20 programme whereby homosexuals are allegedly “cured” of the sin of homosexuality. Grobler was gay, but was not asked to declare his sexual preference when he was appointed. It turned out that he was an excellent teacher, but relations turned sour after some church members discovered that he had a long-standing relationship with another man. Grobler was an employee and not a member of the congregation, but was nevertheless fired, the church citing this reason: “The congregation’s opinion on sexual orientation is well known and has been published, and we cannot deviate from this point of view.”
Grobler sued and was awarded in excess of R80 000 plus costs by the High Court.
Was this judgment a clear-cut confirmation of the rule that the highest law in the land is the Constitutional Court and not the Bible? Or any other religious book?
Sadly, it was not. The court dealt with the issue by viewing purely it as an employment contract – and basically ruled against the Church because they did not ask him if he was gay before they employed him.
We are still waiting for a legal decision where religious freedom is pitted against individual freedom – or simply put: Why should churches be allowed to discriminate on the grounds of sexual orientation and other entities not?
The Grobler case was, however, a step in the right direction.
Another case in point relates to an event in 2003 when gospel singer Danie Botha said from a pulpit that “all gay people are going to hell”. I laid a charge of discriminatory and/or hate speech with the South African Human Rights Commission, which they declined to investigate, as we have seen many times with our beloved SAHRC – as recently as the case of Jon Qwelane when he equated gays to animals. After many years we are still back on square one after Qwelane got the judgement rescinded on the grounds of his being out of the country. As was said at the time, what would have happened if Botha had said all people of San origin are going to hell for praying to their ancestors?
The mind boggles.
Of course religion and gay rights have been at odds – all the main Abrahamic religions (Islam, Judaism and Christianity) condemn homosexuality in one way or another – or at least, the modern interpretation of it. Many scholars would, however, disagree. Repeated translations of old texts have in many instances altered the original meaning. Religion, it seems, can be changed and manipulated to suit the personal value systems of those who are its followers.
In an interesting development it was reported by Pink News from the United Kingdom that “Religious groups are to be forced to accept gay youth workers, secretaries and other staff under new anti-discrimination laws.”
Previously, all roles necessary for the “purposes of an organised religion” were exempt. However, the new Equality Bill in the UK now applies this only to those who lead in churches, or spend the majority of their time teaching church doctrine, such as preachers, bishops and the like. Most other church employees, such as our music teacher Mr Grobler, may not be discriminated against.
What the main religions often disregard is that there are billions of others who do not believe the way they do. For an atheist the whole debate is meaningless. For him or her, God does not exist, there is no sin as described by church doctrine, and “heaven” and “hell” are concepts used by the likes of Bryan Adams and Meatloaf in the lyrics of the songs they sing.
For mainstream religious types, “gay churches” such as our own Reforming Church, Agalia Ministries and MCC, are anathema. Their right to exist is sometimes called into question. They, of course, have the exact same right of existence as any other church under our Constitution.
What we need in South Africa is a court ruling by the Constitutional Court, or at least a law, that clearly states that the supreme authority of this land is, in fact, the law and not doctrine and that religion is bound by all of it and not just those sections these religions seem to deem fit.
– Coenie Kukkuk