Rental Housing Amendment Bill

A Rental Housing Amendment Bill has been published which is soon becoming the Rental Housing Amendment Act. Some changes is to be noted to the current Rental Housing Act, of which the most are applicable to Ministers, Tribunals and Municipalities. I am not going to bore you with that information, whilst it might be worth reading it.

Practically the most important changes are that the Bill specifies the rights and obligations of the tenant and also the rights and obligations of the landlord. If one scrutinizes the Bill, it is to be noted that these rights and obligations are already contained in section 5 of the Rental Housing Act.

Noteworthy changes, however, are firstly that the Bill specifies that the landlord has the right to evict the tenant after obtaining a Court Order in accordance with the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19/1998 (“The PIE Act”). Until now it has only been a Court decision that the eviction of a tenant has to be dealt according to the PIE Act. There was also some controversy about that and some jurists were of the opinion that PIE is not applicable to leases, but now it seems that the Legislator has cleared the controversy and now it is the law.

Secondly the Bill defines “habitability” and I quote. Habitability refers to a dwelling that is safe and suitable for living in and includes
(a) adequate space;
(b) protection from the elements and other threats to health;
(c) physical safety of the tenant, the tenant’s household and visitors; and
(d) a structurally sound building.
Habitable has a corresponding meaning.

The Bill also defines “maintenance” and I quote. Maintenance includes such repairs and upkeep as may be required to ensure that a dwelling is in a habitable condition.
Maintain has a corresponding meaning.

The Bill furthermore places an obligation on the landlord that the landlord must (not may) provide a tenant with a dwelling that is in a habitable condition, as well as maintain the existing structure of the dwelling and where possible facilitate the provision of basic services to the dwelling.

A final change that is to be noted is that if the tenant is responsible for payment of any additional charges in respect of the lease, eg. levies, municipal charges, etc, those has to be specified in the lease.

MARIUS STENEKAMP ATTORNEYS WINTER DRIVE

NightShelter

nightshelter2

This winter, Marius Stenekamp Attorneys is doing a WINTER DRIVE in aid of the Somerset West Night Shelter.
To anyone who is unaware of the existence of the Shelter, it is an NGO established 26 years ago. Its aim is to assist the homeless firstly by getting them off the streets and providing them with the basic human necessities such as a warm bed and a plate of food. The Shelter then aims to rehabilitate these persons back into the community by teaching them to accept responsibility for their lives.
Please visit their website at http://nightshelter.org.za/ should you wish to read more about the extraordinary work done by the staff of the Shelter.

We are asking for the assistance of all our valued clients, in collecting basic necessities that will aid the staff of the Night Shelter in their daily challenging task of restoring the dignity of the less fortunate persons of our society.

We will appreciate any donation of the following:
1. Clothing, shoes, blankets etc. in good condition;
2. Non-perishable food items such as rice, canned foods, pasta etc;
3. Any wrapped or unused sanitary items such as soap, facecloth, body wash, and lotion. Even the tiny sample sized items that are usually collected from magazines & hotels will make a difference and be hugely appreciated.
Should you wish to donate any item, however small, we have a “donations” box at our offices, situated at 23 Fountain Square, 136 Main Road, Somerset West. We are also willing to collect anywhere in the Helderberg area.
We thank you in advance for your contribution and remember:

A SMALL GESTURE WILL MAKE A BIG DIFFERENCE.

Please call Adri Grant at our office 021 837 1235/6 or 083 3670 773, should you require any additional information or should you wish to arrange for collection of any items.

Kind Regards

MARIUS STENEKAMP ATTORNEYS

Interview on Radio Tygerberg: Taro Boshoff

Tygerberg1

Our outreach to the parents of Taro Boshoff.

From left to right is Marinus Boshoff (father of Taro), Lisl Boshoff (mother of Taro), Marius Stenekamp, Anton from Radio Tygerberg and Jan Kruger.

20131210_155432_1_resized (1)

Karien of Radio Tygerberg who conducted the interview joins us for a photo.

20131210_155304_resized

The Vuurvas team quite relaxed before the live broadcast. Thank you to Radio Tygerberg. You are stunning!

Visit Taro’s website www.taro.co.za or click here to read Taro se storie

To call Mandela a saint is to dishonour his memory as a fighter against injustice

Dec 6th, 2013 by Pierre De Vos.
Nelson Mandela was not a saint. We would dishonour his memory if we treated him as if he was one. Like all truly exceptional human beings he was a person of flesh and blood, with his own idiosyncrasies, his own blind spots and weaknesses. He was also a human being who decided to take political action to fight injustice – and in the process sacrificed much in the struggle against racial oppression.

It would dishonour the late Nelson Mandela to de-politicise his legacy and to pretend that his life was not synonymous with the ANC (as it then was) and the struggle against white privilege and domination. His brilliance must surely be found in the fact that he was a principled and hard-nosed politician who also had the dignity and the self-knowledge that drove him to try and bridge the unjust divide between races created by colonialism and apartheid.

nelson_mandela_anc

Nelson Mandela was first and foremost one of the greatest if not the greatest leader the ANC ever had. Much of what he did during his life he did in the name of the ANC. This was probably his greatest source of strength.

He was loyal to a fault, writing President Jacob Zuma a R1 million cheque a few days after Zuma was fired as Deputy President. This he did despite the fact that a few weeks earlier a court had found that Zuma’s “financial advisor”, Schabir Shaik, had solicited a bribe from an arms company on Zuma’s behalf and had also paid Zuma more than R1 million to ensure that Zuma would use his political clout to do favours for him in return. In this case Mandela’s loyalty to Zuma (and to the ANC) seemed to have trumped his disgust of corruption and nepotism.

Recognising this should not diminish him in our esteem. Instead it should remind us that he was somebody far more interesting and human than a saint. It is exactly because he was very human that his exceptional qualities come into focus so sharply.

As a politician he could be hard-nosed and steely – but always dignified. This often stood him in good stead. FW de Klerk found out that Mandela was not to be trifled with when Mandela responded to De Klerk’s opening statement at Codesa in a manner that started shifting the balance of power between the two men and between the ANC and the NP. Ahmed Kathrada has said that this was only one of two times that he saw Mandela lose his temper. But even then, the steely resolve and reasoned but cutting response to De Klerk’s remarks did Mandela proud. In that speech he said:

[De Klerk] has launched an attack on the African National Congress, and in doing so he has been less than frank. Even the head of an illegitimate, discredited, minority regime as his, has certain moral standards to uphold. He has no excuse, because he is a representative of a discredited regime, not to uphold moral standards. He has handled – and before I say so, let me say that no wonder the Conservative Party has made such a serious inroad into his power base. You understand why.

If a man can come to a conference of this nature and play the type of politics which are contained in his paper, very few people would like to deal with such a man. We have handled the question of Umkhonto we Sizwe in a constructive manner. We pointed out that this is one of the issues we are discussing with the Government. We had bilateral discussions but in his paper, although I was with him, I was discussing with him until about 20h20 last night, he never even hinted that he was going to make this attack. The members of the Government persuaded us to allow them to speak last. They were very keen to say the last word here. It is now clear why they did so. And he has abused his position because he hoped that I would not reply. He was completely mistaken. I am replying now. We are still to have discussions with him if he wants, but he must forget that he can impose conditions on the African National Congress and, I daresay, on any one of the political organisations here.

It was exactly because he was so principled and knew what he wanted that as President of the country he could also be remarkably humble and uncompromisingly principled. As President he displayed a majestic sense of right and wrong and an admirable respect for those who were not categorised as having the same race, sex, or sexual orientation than himself. He also reached out at those who are living with HIV.

In this he embodied the principle, first enunciated by the Constitutional Court in the judgment that declared invalid the criminalisation of same-sex sodomy, that equality at the very least demands respect for people who are different from oneself and at best demands a celebration of those differences.

Nelson Mandela’s displayed an astonishing and unique respect for the post-apartheid judiciary. Given the fact that he spent 27 years in jail after being sentenced to life imprisonment by the apartheid judiciary, he might easily have harboured some suspicions against old and new order judges alike. Yet, he understood that the success of South Africa’s new democracy also depended on the very judiciary, which had previously enforced apartheid legislation, often with enthusiasm and without any regard for justice.

Speaking at the inauguration of the Constitutional Court in 1995, he said the following:

The last time I appeared in court was to hear whether or not I was going to be sentenced to death. Fortunately for myself and my colleagues we were not. Today I rise not as an accused but, on behalf of behalf of the people of South Africa, to inaugurate a court South Africa has never had, a court on which hinges the future of our democracy.

Mandela then continued:

People come and people go. Customs, fashions, and preferences change. Yet the web of fundamental rights and justice which a nation proclaims, must not be broken. It is the task of this court to ensure that the values of freedom and equality which underlie our interim constitution – and which will surely be embodied in our final constitution – are nurtured and protected so that they may endure.

Given his history, and given the respect he commanded across the political spectrum by the time he became President of South Africa, Mandela could easily have objected when unelected judges of the Constitutional Court first declared his actions unconstitutional and invalid.

But this he did not do. Instead, he embraced the principle of constitutional supremacy and set the Constitutional Court on the road to becoming one of the most respected, perhaps even revered, courts in the world.

This happened in 1995, only one year after the advent of the new Constitution, when the newly established Constitutional Court declared invalid a provision of the Local Government Transition Act. The impugned provision bestowed power on the President to amend that Act, which had been duly passed by Parliament. President Mandela had relied on this provision to amend the Act.

The New National Party government (who then governed the Western Cape Province) challenged the validity of President Mandela’s decision on various grounds, including on the basis that the provision in the Act on which President Mandela had relied was unconstitutional. The Constitutional Court found that the provision was indeed unconstitutionally because it breached the separation of powers doctrine as it handed over the power to enact legislation to the President while the Constitution reserved this power for Parliament.

After the Constitutional Court handed down this ruling, President Mandela appeared on television to affirm his respect for the power of the Court to declare his actions unconstitutional and invalid. He also affirmed that he would respect and obey the decision of the Court. After all, the power of the Constitutional Court to nullify decisions of the President that did not comply with the Constitution lay at the heart of our system of constitutional supremacy.

By affirming that it was necessary for the legislative and executive branches of government to respect and obey the decisions of the judiciary, Mandela confirmed respect for the principle of checks and balances built into the Constitution, making it difficult if not impossible for his successors to question the validity of unpopular court judgments.

It was even more remarkable when, a few years later, a judge of the High Court inappropriately compelled Mandela to testify in open court about the circumstances which led the President to appoint a Commission of Inquiry into the affairs of the South African Rugby Football Union, he complied without fanfare.

Despite being the President of the country and despite being Mandela, he agreed to testify and to be subjected to cross-examination. The Constitutional Court later criticised the High Court for subjecting the sitting President to cross examination, calling it an “unusual” decision with “far-reaching implications, particularly because of its impact on the question of separation of powers and the comity between different arms of the state.”

The Constitutional Court could not find any cases in foreign jurisdictions in which a head of state had been compelled to give oral evidence before a court in relation to the performance of official duties. Mandela might well have baulked at being ordered by a High Court judge to give oral evidence and to face cross-examination, but he did not.

Mandela was not a saint, but he could well be described as the patron saint of South Africa’s democratic order. By signaling – in both words and deeds – that he respected the system of judicial review and that he accepted the principle that the Constitution does and should limit the powers of the other branches of government, he demonstrated the insight and wisdom of a leader that only truly fortunate nations are ever blessed with.

THERE IS NO BREAK FOR KIT KAT

Swiss food giant Nestlé has lost its legal bid to stop United Emirates rival Iffco from selling its chocolate coated wafer finger products, which Nestlé claims is similar to its well-known Kit Kat brand, in South Africa

North Gauteng High Court Judge Johan Louw dismissed Nestle’s application for an interdict to stop Iffco from infringing Nestle’s “Have a break … Have a Kit Kat” trade marks or passing off its product as being associated with Nestlé.

He also dismissed Nestlé’s application to expunge Iffco’s “Quanta Break” and “Tiffany Break” trade mark registrations in South Africa.
A counter-application by Iffco to expunge Nestlé’s finger wafer trade marks was similarly dismissed.

Judge Louw said Nestlé had not presented any evidence of deception or confusion between the products.
He said he was satisfied that a customer would not regard the presence of the depictions of the chocolate fingers on Iffco’s packaging as creating an impression of a material link between its product and that of Nestlé.

He said the customer would on opening Iffco’s product also not believe that it emanated from Nestlé or that there was a connection between the Break product and Kit Kat.

“The customer will not see the shape of the product as indicating origin.
“The applicants have not succeeded in proving infringement of their finger wafer trade marks,” he said.
Judge Louw said there could be no doubt that Nestlé’s Kit Kat chocolate wafers were well known.

It has been sold in the UK since 1935 and for more than 50 years in South Africa and was the largest chocolate brand in the world.
He however said he did not believe Iffco’s depictions of chocolate fingers on their packaging and of their chocolate bars would unfairly take advantage of, or be detrimental to Nestlé’s registered Kit Kat marks.

He said Nestlé had not presented any evidence of confusion despite the two products being marketed side-by-side from a considerable period.

He added that the get-ups of the two products were so different that no customer would think there was an association between the products.

The Judge said if Iffco’s use of the word BREAK, which was an ordinary word, was to be interdicted, Nestlé would effectively be given exclusive use of the word BREAK.

This would negate the existing disclaimers that the registration of Nestlé’s marks did not give a right to the exclusive use of the word BREAK separately and apart from the mark