SAPOA's national office in Sandton monitors and comments on all legislative matters affecting the property industry emanating from national government. It is daily becoming more involved in assisting government to formulate policy.

SAPOA's provincial councils undertake a similar exercise, subject to SAPOA standpoints on a variety of matters. Government at all levels prefers to work with organised opinion on legislative matters and the combined energy and shared expertise of SAPOA's members is regarded as a valuable source of knowledge.

Government Relations

There is a concerted effort by both the national office and the provincial regions to create, establish and maintain sound working relationships with government at all levels. SAPOA believes the free enterprise system is the only one which enables the property industry to work for the benefit of all in terms of the inalienability and protection of property rights. Its efforts to influence government and property-related legislation are based on this premise. Government accepts that SAPOA's members, being major stakeholders, have a vital role to play in the economic direction of the country. To cement these bonds, SAPOA organises a special programme, the Property Executive Programme, a top-level interface with prominent government and business leaders to discuss current issues and directions.

City of Tshwane Metropolitan Municipality v Body Corporate of Faeriedale - Does the Body Corporate have the power to sue on behalf of individual sectional title owners? Click here for the full story ...

Commission Tariffs - As you are aware the Competition Commission have advised that they do not allow commission tariffs as they believe it creates an anti-competitive situation. For this reason SAPOA has asked our broking members to let us have the average commission earned during 2004. We will then be able to publish a document giving the average commission earned during 2004 as a research document rather than a tariff guide.
We urge all broking members to please let us have these figures as previously requested. Please send these figures to Corinna Kreissel on accounts1@sapoa.org.za as a matter of urgency.

Debt Collectors Act
SAPOA is presently waiting for a legal opinion from the Estate Agency Affairs Board (EAAB).
The view of the EAAB is that rent collectors who are registered with the EAAB do not fall under the Debt Collectors Act where rental is collected on behalf of a landlord.
Property Owners who collect their own rent obviously do not fall under the Deb Collectors Act.
SAPOA will keep you up to date.

Department of Land Affairs to review and redraft the land registration legislation - Click here to download document

Duty to pay rent when removing alterations after termination of Lease -

In Nedcor Bank Ltd v Withinshaw Properties (Pty) Ltd 2002 (6) SA 236 (C) a lease agreement concluded between a bank and a lessor concluded during October 1990 contained a clause (clause 32.1) reading as follows:

"Upon the termination of this lease, notwithstanding anything to the contrary herein contained, the landlord may require the tenant at the tenant's sole cost and expense to re-instate the premises and remove any alterations, extensions, renovations or the like effected by it so that the premises are restored in the same good order and condition as they were at the commencement hereof, fair wear and tear expected."

The outcome of the case hinged on the correct interpretation of this clause. The facts were straightforward. The bank (Nedcor) had rented premises from W over a period of some 23 years in terms of three separate lease agreements, the last of which was concluded during October 1990. Shortly after it took occupation of the premises in terms of the initial lease agreement, the bank effected a number of major improvements to the premises, including the installation of a vault or strongroom as required for its commercial banking business.

The last lease agreement terminated on 31 October 1999. Nedcor did not wish to renew the lease and then suggested that W take over the premises as they were, without any permanent improvements removed. W, however, rejected this suggestion and, relying on clause 32.1, required the premises to be reinstated in the same condition as that in which they had been at the commencement of the initial lease agreement some 23 years previously. This meant that Nedcor had to demolish the strongroom, which had been constructed with reinforced concrete. In the end it had to make use of a front-end loader and other heavy duty equipment (including explosives) to carry out the work. For this purpose it is remained on the premises, with the leave of W.

It took some six weeks to complete the restoration work. Nedcor vacated the premises on 17 December 1999. W thereupon claimed from Nedcor payment of rent in the amount of R156 468,44 for the months of November and December. In this regard it relied on an alleged implied term of the lease to the effect that Nedcor would remain in occupation of the premises while it removed its equipment and fittings, subject to the payment of rent in the amount of R78 234,22 per month.

The issue in dispute was whether or not the alleged implied term could be read into the lease agreement.

A magistrate's court found in favour of W, whereupon Nedcor lodged an appeal to the High Court. The appeal succeeded on the following grounds:

In as much as the major improvements effected by Nedcor dated back to the period of the first lease, such improvements, including the vault, were clearly already part of the leased premises when the last lease agreement was concluded. In terms of clause 32.1 W could require Nedcor to remove only those alterations, extensions or renovations which were effected during the period of such lease, ie the last lease. Accordingly, it had no right to require Nedcor to remove the strongroom or any other improvement or fixture dating back to the period of the first or second leases. Both parties had apparently misinterpreted the scope of clause 32.1.

In any event, it could clearly not have been the intention of the parties that Nedcor should pay rent for the period during which was compelled to remain in occupation of the leased premises while complying with W's request for reinstatement thereof. Both parties must have contemplated that, should W exercise its discretionary right to require reinstatement of the premises, this would take place only after termination of the lease. It could never have been their intention that the reinstatement should be effected before termination of the lease.

Estate Agency Affairs Board comment - The practical effect of the case is that, from a lessor's point of view, it would be advisable to include a clause in a lease agreement stating that should the tenant have to remain in occupation after termination of the lease in order to remove alterations, extensions or renovations effected by it during the currency of the lease, the duty to pay rent will continue for as long as it takes to complete the reinstatement work.
Extracted from Agent, The Official Newsletter of the Estate Agency Affairs Board, March 2003.

From the Law Bench - The Estate Agency Affairs Board's comment on recent judgement handed down by the Bloemfontein Supreme Court. Click here for full documents.

Gauteng Planning and Development Act No 3 of 2003 -
The above act was published in the Provincial Gazette on the 17^th October 2003. Click here for more

Gauteng Planning and Development Bill - Click here for more.

Important judgment on property views - click here for legal document (Members only)

Land Use Management Bill - The SAPOA document sent to Minister of Land Affairs. Click here for the full text of the letter ( .doc in zip format 6 Kb )

Landlords celebrate landmark court ruling - Extracted from The Star, 20 October 2003. By Anna Cox click here for full article

Legal issues -
a)      Court Acknowledges the importance of property views (Shepstone & Wylie Attorneys)
b)      Court declares By-Law on arrears unconstitutional
For more info click here

Mortgage bonds click here - SARS confirms cuts in Real Estate Transfer Duty

Payment of Municipal Services Fees - click here to download document (Members only)

Prevention of Illegal Eviction and Unlawful Occupation of Land (PIE) Amendment Bill 2005. Click here to download document

Property Rates Bill -

1. The SAPOA committee that produced a comprehensive memorandum on the Property Rates Bill, has now had the opportunity to study the latest and probably the last pre-promulgation draft of the bill, dated November 2002.
2. It was common cause during the period of comments that SAPOA supported a single system of valuation and rating for the whole country as well as the concept of market value as the common basis of valuation.
3. From the latest draft it is clear that two matters, that SAPOA regarded as matters of principle, have not been accepted by the legislature. They are :

a) SAPOA's objection to improvements being valued (sec.39(1)). The general basis for valuation is the improved value of property based on market value. The basis for SAPOA's objection can briefly be summed up as follows:

• It will inhibit investment in property. Such a rating policy does not optimise growth because the fact that commercial developers spend millions on improvement of their properties, which consume and pay for services far in excess of other forms of ownership, is totally disregarded.
• There are not sufficient qualified valuers in the RSA to deliver proper valuations for both property and improvements.

b) SAPOA's objection to the disappearance of Valuation Boards. The result is that the municipal valuer himself considers and decides objections to the valuation roll (sec.31(1)(d)). SAPOA pointed out that the result of such an approach is in conflict with secs. 33 and 34 of the Constitution and with the Promotion of Administrative Justice Act 2000 (No. 3/2000). The principles contained in the abovementioned laws clearly conflict with the appointment of the municipal valuer who is required to judge his own valuation. This problem, is however, ameliorated by the fact that an appeal lies to the Valuation Appeal Board (sec.50).

Property Syndication (Public) Final Notice. click here for the document

Protection of View - Until recently a registered owner of a property had full enjoyment and usage of his property... read full document here (Members only)

Research Survey Presentation – Tourism Planning and Development in South Africa: Implications for new Hotel Development
Tsepo Makhudu has recently completed a research report for his Master of Science degree in Property Development and Management at the University of Witwatersrand. The topic of his study is "Tourism Planning and Development in South Africa: Implications for New Hotel Development".
The author has kindly let us have a copy of the research report for the SAPOA library and is available to members.
An executive summary can be found here and Tsepo Makhudu can be contacted at Tel: 011 780 0428 Mob: 082 809 5837 email: tsephom@southernsun.com

SAPOA legislation activities 2003. Click here for document

Section 51 Manual click here

Shock Property Law Ruling - Press Release put out by the Property Committee of the Law Society of South Africa which supported our statements exactly. Click here for the document.
We have asked for an urgent meeting with the Minister of Housing, Minister Sanki Mthembi-Mahanyele with regard to this latest Appeal Court decision !! A draft press release is attached.

Stamp Duties - Letter to SARS - click here for full document

STAMP DUTIES ACT, 1968 - click here for pdf document

The Competition Commission and SAPOA Guidelines for Commission - Members will be aware of the fact that the Competition Commission has outlawed all forms of commission tariffs (recommended or otherwise). SAPOA has therefore withdrawn its commission guidelines in order not to fall foul of their ruling. SAPOA will meet with senior officials of the Competition Commission during November 2004 in order to clarify SAPOA's position

The Department of Land Affairs has given notice of its intention to introduce the SECTIONAL TITLES AMENDMENT BILL 2003 into Parliament. The Bill is available on the SAPOA website for members to download. If necessary the Sectional Titles Committee will comment on the Bill. Should any members have issues they wish to raise kindly let SAPOA have details. Email: Boet van Straten  legal@sapoa.org.za

Tobacco Products Control Amendment Act 2003 -
This memorandum is prepared for the information of SAPOA members. Click here for full article

Transfer Clearance Certificates and Claim Preferences: Municipal Debts v Mortgage Bonds click here for full document

Update on New Bills - click here for full list