Van Greunen & Associates Inc. - Vga.co.za

Van Greunen & Associates Inc.
Monthly Newsletter
Issue 1 – January 2011
Special note from Directors:
Firstly, we would like to take this opportunity to thank you for your continued support. Without you
our success would have been insignificant. We are confident that together we will make 2011 a
spectacular year for all of us.
We will endeavour to provide you with unrelenting meticulous advice as to how to protect your
interests in disputes relating to General Litigation (All jurisdictions in RSA), Urgent Applications,
Dissolution of any civil law disputes, Evictions, Civil liability law with a direct approach to resolve a
dispute as professionally and efficiently as possible.
Our team of professionals has extensive litigation experience in the Magistrate and High Court and
we offer a comprehensive package to assess your needs and can act accordingly.
Our team of skilled and experienced lawyers, assisted by competent and fully accessible support
staff, will aim to render professional legal services to all our valued clients.
Wishing you all the best for the future!!
Johan van Greunen & Innes Steenekamp
Van Greunen & Associates
106 Panorama Avenue, Rooihuiskraal, Centurion 0157
PO Box 68492, Highveld, 0169
Tel: +27 (0)12 661-2065 Fax: +27 (0)12 661-5494
Email: accounts@vga.co.za Website: www.vga.co.za
Directors: J. Van Greunen I.R. Steenekamp
VAT No.: 4230227680 REG No.: 2007/015007/21
THIS ISSUE:
2011 ANNUAL RETURN DEADLINE p2
EVICTING UNLAWFUL TENANTS p2
IMPLICATIONS OF PRESCRIPTION p3
DON’T DELAY p3
OUR SERVICES
We offer the following range of
services:
• Litigation (Civil)
• RAF Claims, Motor Vehicle
Insurance Litigation and
Damage to Motor Vehicle
resulting from an Accident
Claim
• Debt collection
• Insolvency Law
• Companies and Close
Corporations
• Labour Law
• Matrimonial law (Divorces,
custody and control of minors
and maintenance)
• General litigation (Botswana,
Namibia and Zambia) and
International cross border
litigation (France, United States
of America, United Kingdom
etc.) including cross border
insolvency maters
• Commercial
• Wills and Testaments

EVICTION OF UNLAWFUL TENANTS
By way of introduction it must be stated that
evictions of unlawful occupants from rental,
residential property has become a subject of
widespread discussion and misinformation by the
general public.
This article is merely intended to give a practical
overview of the procedures to be followed for the
eviction of unlawful occupants, whether
occupying a property in terms of a lease
agreement is simply “Squatting”.
From the onset it must be stated that a proper
lease agreement must be entered into between
the landlord on the one hand and the occupant
on the other hand.
The lease agreement must comply with all the
requirements as set out in the Rental Housing
Act, Act 50 of 1999 (as amended). A more
thorough discussion relating to lease agreements,
in general will follow in later articles.
It must merely be stated that in the event of a
tenant being in breach of his obligations in terms
of a rental agreement whether it be for rental
amounts outstanding and / or for electricity
charges due to the Municipality (where
applicable) it is advised that a landlord act as
soon as possible.
The reason for the aforesaid is simply that
experience has taught that the more time lapses
from date of non payment to an action, being
instituted the mere difficult it is to successfully
recover the outstanding amounts which, then
results in more damage to the landlord.
Taking into account the aforesaid evictions must
be undertaken in terms of prevention of Illegal
Eviction from and Unlawful Occupation of Land
Act, Act 19 of 1998)(as amended) (herein after
referred to as the “PIE Act”).
The PIE Act is applicable to all evictions including
residential property safe for commercial
properties, as a result of the Judgement by the
Appellate Division in the Cape Killarney Property
Investments (Pty) Ltd v Mahamba Sands and
another 2001(4)SA1222 (SCA).
As referred to above, a proper lease agreement
should be entered into between the landlord and
the tenant which lease agreement should
incorporate a proper, breach of contract clause.
In practice the said breach of contract clause
states a time period after a notice of breach was
sent by the tenant to pay any outstanding
amounts.
Once a letter of demand has been served and
the time period in the letter of demand lapses,
the landlord may proceed to cancel the
agreement and issue Summons.
It must also be stated that an interim
attachment in terms to the Magistrates Court
Act may be obtained on an urgent basis attach
movable property found on the lease premises
pending the finalisation of an action by a
landlord.
Simultaneously with the aforesaid
attachment or thereafter a Summons may
be issued for the following:
1) a claim for arrear rental;
2) a claim for outstanding electricity rates
and taxes, etc.;
3) a claim for eviction;
4) a claim for damages to the property.
It is advised that the Summons be issued as
soon as possible.
Notice should also be taken by a Magistrate
that a Notice in terms of Section 4(2) of the PIE
Act, must be issued and served 14 (fourteen)
days prior to the hearing of the matter on the
Municipality and the tenant.
Once all the formal procedures have been
complied with, Judgement for eviction may be
requested.
The aforesaid procedure must be carefully
followed and the strict time periods adhered to
by the Attorney acting on behalf of the
landlord.
It must once again be re‐iterated that an
eviction is undertaken in terms of a specific
procedure and that no other legal means of
eviction is possible safe for the provisions as
set down in the PIE Act read together with case
law.
It needs to once again impressed upon the
reader that the quicker a landlord acts the less
he’s damages will be.
Innes Steenekamp
2011 ANNUAL RETURN
SUBMISSION DEADLINE
APPROACHING FAST
In keeping with legislation, each company
or CC is compelled in terms of the Act to
lodge an Annual return once a year. of late
the Companies and Intellectual Property
Registration office has become increasingly
strict regarding the submission of all
Companies’ and Closed Corporations’
annual returns.
The deadline for submitting annual returns
for the period of 2010 is on 31 January
2011 at 18h00, failure to do so will carry
severe consequences for your company or
CC.
Should you fail to register your companies’
of CC’s annual return on or before the
abovementioned date the deregistration
process will commence, which will have
the following consequences for your
business:
1) If your business is deregistered, it
no longer complies with the
relevant Act and as such you will
not be able to carry on business as
usual;
2) Your business will lose its juristic
status and in certain circumstances
the directors or members of your
business can be held liable on
behalf of the business;
3) Your business bank account will be
frozen administering a fatal blow to
your ever important cash flow; and
4) In terms of the law, any assets
owned by the business will be
forfeited to the state.
Don’t delay, submit your annual return
today to secure the future of your business.
For any assistance, kindly contact these
offices.
Ulrich Wilgenbus

DRIVING UNDER THE INFLUENCE‐ DON’T
One for the road…?
Come on, buddy , just a last one..? Be a
sport…!
This is general talk at any party today,
whether private, public or just two buddies
sharing a drink or two.
But what are the rights if pulled over when
one had one too much?
South Africans are prohibited to drive a
vehicle on a public road or even to occupy
the driver’s seat of a vehicle whereof the
engine is running, while his concentration
of alcohol in any specimen of blood taken
from any part of his body is not less than
0,05 gram per 100 ml.
The concentration of alcohol in any breath
specimen shall be ascertained by using the
prescribed equipment.
The authorities may take breath and/or
blood specimen to determine the level of
alcohol in your system. This instrument
must be calibrated every 6 months or
directly after a service thereof at an
accredited institution and the officer
executing the test, must have this proof as
well as his certificate to operate the
instrument, with him. An officer must also
identify himself with his appointment
certificate at your request.
Any person detained for an alleged
contravention of any provision of this
section shall not‐
1) During his or her detention consume
any substance that contains alcohol of
any nature, except on the instruction of
or when administered by a medical
practitioner;
2) During his or her detention smoke
until the specimen has been taken.
Section 65(9) stipulates that: “No person
shall refuse that a specimen of blood, or a
specimen of breath, be taken of him or her.
A peace officer is allowed to arrest a person if
he suspected that he committed an offence in
his presents which obviously includes drunken
driving.
We recommend that you co‐operates with the
authorities when caught in a situation where it
is suspected that your alcohol level exceeds the
limit prescribed in the act. Remember, when
your blood specimen is taken, the doctor /
nurse should not clean the vein area with
mentholated spirits or any other alcohol
containing substance as this will increase your
alcohol level result.
Keep in mind that being found guilty of “driving
under the influence of alcohol” will result in you
getting a criminal record and even up to six
years imprisonment. With the new point system
on its way you will risk the validity of your
driver’s licence. Factors considered for penalty
are level of intoxication, distance planed to
travel, distance already travelled, speed
travelled, busyness of road used, passengers in
vehicle, etc.
Eddie Adendorff
DON’T DELAY, TOMORROW
MIGHT BE TOO LATE
An aspect in South African law, most
consumers are not aware of is the
implications and dangers of prescription.
Just the mere mention of the word
prescription makes many attorneys break
out in a cold sweat.
The Prescription Act provides that a claim
for debts prescribes within three years
from the date upon which the debt became
due and payable to a creditor, except
where the claim is in respect of a
negotiable instrument, such as a cheque of
notarial contract, in which event a period
of six years would be applicable. A debt is
due when it is claimable by the creditor
and due by the debtor. At this point,
prescription will start running and the
creditor will only have three years to
institute legal action against the debtor to
recover the debt.
Failure to institute any action within this
period will result in the debt being
regarded as old and the debtor will no
longer be legally obligated to pay such a
debt. This has resulted in many a claim
being rendered null and void by the South
African courts.
The question that begs to be answered is
what can be done to interrupt the running
of prescription. This can only be done
either by judicial interruption or by an
acknowledgement of liability. Judicial
interruption has been identified by the
court as the moment when a
process is served on the debtor of the
instituting legal proceedings in respect of
the cause of against which prescription is
running.
The documents deemed to initiate legal
proceedings include, but is not limited to, a
summons, a notice of motion, a rule nisi
(interim order), a pleading in reconvention, a third party notice referred to in the rules of court
and the statement of claim in arbitration proceedings.
It is important to note that prescription will only be interrupted when the abovementioned
documents are served on the debtor and not by the mere issuing thereof. As such the Act provides
for three prerequisites before prescription is interrupted:
1) There must be a process (the document initiating the legal proceedings);
2) The process must be served on the debtor; and
3) The creditor must claim payment of the debt against which prescription is running.
In light of this brief discussion, it is highly advisable that any creditor who has a valid claim
against a debtor must be wary of leaving a claim on the back burner. You do not want to forfeit
your claim due to prescription.
Ulrich Wilgenbus