PUTTING UP YOUR OWN ROAD SIGNS CAN BE ILLEGAL


Zinta van der Linde

Did you know that putting up road signs without the necessary permission from the relevant authorities could make you guilty of a criminal offence?

In the matter of Vermeulen Verf CC & Another v DIY Superstores (Pty) Ltd & Others the two parties conducted more or less the same type of business from their respective premises which was situated opposite each other. The road separating the premises had two traffic lanes separated by a concrete traffic median. In order to enter the premises of Vermeulen Verf a prospective customer therefore would have to make a u-turn at the end of the traffic median to enter their premises on the right.

DIY Superstores however instructed a sign company to erect a “no u-turn” sign. The sign company was not a competent authority and thus not in compliance with the standards and regulations pertaining to traffic management. Section 57(10) of the National Road Traffic Act, 93 of 1996 specifically prohibits any person to display any road traffic sign on a public road unless authorised to do so by the competent authority. Any member of the public may institute action in terms of the aforementioned Act on behalf of other members of the public.

The effect of putting up the “no u-turn” sign was that of practicality. Prospective customers had to drive one kilometre further to make a u-turn and drive back to their destination. It was inevitable that the sign was illegally put up and when an act is statutorily prohibited for the protection of a particular party, then it is not necessary to allege special damages.[1] It is merely an incidental result that the illegal putting up of the “no u-turn” sign, allegedly perpetrated with ulterior motive, which meant that customers of Vermeulen Verf had to travel an extra distance without any cogent reason, and therefore this resulted in damages. What was however considered above all other factors was the effect that this road sign had on the public as affirmed by the courts in other matters preceding this one as follows:

“Where it appears either from reading of the an enactment itself or from that plus a regard to surrounding the circumstances that the Legislature has prohibited the doing of an act in the interest of any persons, the intervention of the Court can be sought by any such person to enforce the prohibition without proof of special damages.”[2]

One could argue that DIY Superstores was merely putting up the road sign as a gesture of good faith and as a civilian act due the incompetence of its municipality. The court however said that “while it is commendable…his actions remain illegal.”

The model of the story: do not take the law into your own hands. Do not perform illegal actions. Rather make an appointment with one of the attorneys at JJR Inc. for assistance.

[1] Patz Supra 1907 TS 427 at 433.

[2] Roodepoort-Mariasburg Town Council v Eastern Properties (Prop.) Ltd 1993 AD 87 at page 96.
[1] Act 130 of 1993

A GENERAL ENRICHMENT ACTIONS: IS THE SOUTH AFRICAN LEGAL SYSTEM READY?


– Mohale Kgatla

Unjustified enrichment is a concept so pure and easy to comprehend and return to with an easy solution to solve.

However, there is a huge debate as to what really constitutes unjustified enrichment and whether there should be any compensation or restitution towards an aggrieved or impoverished party.

In the current legal sense, a guideline has been put forward through the leading case of McCarthy;[1] whereby there must be an impoverished plaintiff bringing their case forward and an enriched defendant that must defend such enrichment. In order for there to be an unjustified enrichment claim there are two more factors that needs to be taken into consideration which is firstly that the enrichment of the defendant is at the expense of the plaintiff and secondly that there is no legal justification for the defendant’s enrichment.

The courts in South Africa have yet to make a pronouncement on whether a unified general enrichment action exists within the prescripts of the current law. As it currently stands, South African law does not recognise such an action because of the last two points of the guidelines given in the mentioned case.

This is because it is quite a daunting task that will reduce a whole case to be reduced to hearsay at the bare minimum, moreover there is a rule coined as the “Double Cap Rule”[2] which makes it very difficult for the courts to authoritatively recognise a general enrichment action because not all enrichment claims are unjustified even in the absence of a legal justification.

Three examples that may come to mind are in the following manner:

  1. Where a defendant is an owner of a piece of land and his / her neighbour made a short cut on the land without the permission or to detriment of the plaintiff, but merely based on the act that the plaintiff saved on fuel using the short cut.
  2. Where a parent[3] provided for maintenance of a child, whereas at a later stage it is discovered that the parent is not the biological parent of that child.
  3. Where a bank receives money on behalf of a client according to a bank-client relationship without the knowledge of how the client had obtained money and allowed the client to make a withdrawal.

In all the aforementioned examples, if the double cap rule is to be applied, then parties who are aggrieved will be left with no remedy.

The courts had many opportunities to make a pronouncement on the recognition of a general enrichment action, however, the main argument that has been advanced is that it would be opening a floodgate of opportunistic and baseless claims that would have otherwise failed in delict and contract.

At this juncture it is clear that the “unique” case that will call upon the courts to revisit this conversation may not be forthcoming and this creates a lot of uncertainty as to how a general enrichment action would look like.

There is a need for a total overhaul of this particular area of the law and a more aggressive approach should be taken rather than a piecemeal extension of the existing system that is going to be rendered obsolete through the progression of time.

[1] McCarthy Retail Ltd v Shortdistance Carriers CC 2001 ZASCA 14.

[2] At close of pleadings to determine whether there is unjustified enrichment the plaintiff must be impoverished at the expense of the defendant and if there is no legal justification then the plaintiff is entitled to the excess amount that will place them on an equal footing with the defendant had the whole matter began.

[3] As defined in the Children Act with the responsibilities accorded to them by Chapter 3 of the act.

NO ONE WILL KNOW IF I ERECT A BRAAI ON MY PROPERTY WITHOUT
WRITTEN APPROVED BUILDING PLANS, RIGHT?


– Ané Kotzé

Every HOA has applicable building guidelines which are stipulated in a Constitution or Memorandum of Incorporation (“MOI”) which every homeowner should be made aware of, read and understood. The guidelines will differ from estate to estate and it is important for the homeowners to adhere to these provisions.

When one wants to erect a building structure on one’s property, written plans have to be lodged with the Homeowners’ Association for consideration. The plans must be within the building guidelines provided for in the Constitution or MOI and based on that, the HOA together with their architect will make a finding. If one erects a structure without these plans, a complaint may be lodged with the municipality and one may receive a notice to obtain written approval for the authorised building work following a summons to appear in court.

The notice to be served on a homeowner who has erected any building, excluding a temporary building, that is being or has been erected without prior approval from the local authority shall be served with a notice, calling upon him/her to obtain the approval, in writing, as required by The National Building Regulations and Building Standards Act No. 103 of 1977 (“the Act”), by a date specified in such notice.  Failure to comply with such a notice may constitute to a criminal offence in terms of Regulation A25(11) of the Act.

If the homeowner fails to comply with the notice, the following procedural step will be a Summons in a Criminal Case. The charges may be based on the contravention of S4(1) of the Act, which states that no person shall without prior approval, in writing, of the local authority in question erect any building in respect of which plans and specifications are to be drawn and submitted in terms of such Act. In addition, Section 4(4) of the Act which states that any person erecting any building in contravention of Section 4(1) shall be guilty of an offence and liable on conviction to a fine not exceeding R100 for each day on which he was engaged in erecting such building.

Due to the homeowner failing to comply with the notice first served, he/she will then be charged with the contravention of Regulation A25 (10) of the Act as well. In essence, he/she would then be charged with the Count 1, the contravention of Section 4(1) and Section 4(4) of the Act and Count 2, contravention of Regulation A25(10).

The penalty awarded to an accused if found guilty will be decided on a case-by-case basis. The Court may consider the nature and the amount of the penalty, the aim of the penalty, which is to compel compliance with the Constitution or the MOI.

The Act makes provision for a general penalty clause where any person convicted of an offence under this Act in respect of which a fine or imprisonment is not exceeding R600 or to imprisonment for a period not exceeding 6 months and Section 4(4) of the Act makes provision for a person to be found guilty of an offence and may be found liable on conviction to a fine not exceeding R100 for each day on which he/she was engaged in erecting such building. However, the court may reduce the penalty to such an extent as it deems equitable or reasonable in the circumstances.

It is clear from the above that the consequences of erecting a structure on one’s property without approved written building plans could be hefty and is something that can be easily avoided when one exercises a bit of patience.

Reference List:

  • The National Building Regulations and Building Standards Act No. 103 pf 1977 (as amended)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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