Christof van der Merwe

It’s almost the end of the year. The time for year-end functions and social gatherings. The time for braai’s and pool parties, with a cocktail in hand. Most people have reverted to the services of Uber or a private transport service for a safe drive home after a night out, but some people still take chances to drive themselves whilst knowing full well that they are, or might be, over the legal alcohol limit.

What Acts are applicable?

Section 65 of the National Road Traffic Act 93 of 1996 regulates the requirements and consequences of driving whilst being under the influence of intoxicating liquor. This should be read in conjunction with the Criminal Procedure Act 51 of 1977.

What is the process?

There are two tests that can be performed to test an alcohol limit, being a breathalyser test and / or a blood test. If you are therefore pulled over for suspected drunk driving, the relevant Metro Police Officer will exercise normal protocol by asking you for your Driver’s Licence and inspecting the vehicle. If the Officer has any reason to suspect that you were drinking alcohol before, and that you are over the legal limit, you might be requested to take a breathalyser test. If it appears that you are over the legal limit, the normal step to follow will be to place you under arrest and to take you to the nearest facility for a blood test to be conducted. It is important to note that a blood test should be done within two hours after the alleged contravention.

What is the legal alcohol limit?

It is important to note that the restrictions and legal limits for normal drivers and professional drivers[1] varies. The legal limit for a professional driver is a bit more unforgiving than those of normal drivers. Allow us to easily break it down for you:

Driver Legal Breath Alcohol Limit Legal Blood Alcohol Limit
Normal Driver Less than 0.24 milligrams per 1000 millilitre of breath Less than 0.05 grams per 100 millilitres
Professional Driver Less than 0.10 milligrams per 1000 millilitres of breath Less than 0.02 grams per 100 millilitres

What are your rights?

It is a common mistake made by suspected drunk drivers to think that a person has the right to refuse that a specimen of blood, or a specimen of breath, be taken of him or her[2].

You do however have the right to be treated with respect and dignity and to have access to your personal medical practitioner if he or she is available. You will, in this circumstance, be held liable for costs occurred. You also have the right to take your normal routine medication.

You further have the right to be arrested in accordance with the procedures and provisions of the law. Should you therefore share the opinion that your arrest was not in line with the law and that it was unlawful, you might have a case for unlawful arrest.


It is clear that driving under the influence of intoxicating liquor and / or drugs having a narcotic effect should at all times be avoided for the safety of yourself and others. We all know however that sometimes the best players slip on a wet tile. Should this happen to you, kindly contact our offices for assistance in this regard.

  • [1] Section 65(3) of The National Road Traffic Act
  • [2] Section 65(9) of The National Road Traffic Act


Zinta Heunis

The pondering question on the minds of many South Africans is how you can protect yourself, your family and your property against burglaries and dangers bearing human rights and the Constitution in mind.

The scenario is as follows: You wake up because of a noise in the living room, your children are in the room next to yours and you fear that something might happen to them. You take your gun out of your safe next to your bed and as you walk to their rooms, the burglar sees you and runs away with your television under his arm. You decide to shoot the burglar in his back which kills the burglar.

Have you done the correct thing?

The Constitution of the Republic of South Africa, 1996 (the Constitution), contains a set of rights that is not only applicable to you, the person protecting his/her family and property, but also that of the burglar:

  • Section 11: ‘Everyone has the right to life’
  • Section 12(1)(c): ‘Everyone has the right to freedom and security of the person which includes to be free from all forms of violence from either public or private sources’
  • Section 25(1):’ No one may be deprived of property except in terms of law and general application’

From the above scenario there are clearly conflicting constitutional rights for both the person shooting and the burglar. Should one right be considered to be more important than another? The Constitution does not provide for a hierarchy of rights, therefore it is possible that the person shooting the burglar can face charges of murder.

It is therefore, important to know when the courts will deem it reasonably justifiable, to shoot someone in an attempt to protect yourself, your family or your property, which can be:

  • The attack against you must have commenced already, or at least be imminent.
  • The person against whom your self-defense act is actioned should pose a threat to your life or anyone else, only then will you be entitled to use the necessary force to defend yourself, your family or your property.
  • The necessary force must be proportionate to that of the attack. In other words your defensive action may not be more harmful than necessary to stop the attack. The merits of proportionality will be determined by the courts by taking into consideration all relevant circumstances and facts.

In conclusion you may defend yourself, your family or your property when the attack has commenced or is imminent to commence in such a way that it is necessary to prevent the attack. Your actions must be reasonable in terms of the amount of force used and it must be directed at the attacker.

Taking the above scenario into consideration against the backdrop of the circumstance and facts, you would be found guilty of murder. Why? There was no attack that put the shooter’s life in danger, exchanging a life for a television is disproportionate as more than the necessary force was used to protect the property and lastly, in terms of section 36(1) of the Constitution your rights may be limited as:

‘only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • the relation between the limitation and its purpose; and
  • less restrictive means to achieve the purpose.’


Lynette Badenhorst

The voetstoots clause is included in the majority Sales Agreements for Immovable Property and is the clause which protects the Seller against liability for any latent defects to the property. A patent defect is a defect that is clearly visible on a normal inspection of the property.  It is a purchaser’s duty to acquaint himself with the general condition of the property when purchasing it, as the purchaser cannot later claim that he did not see such defects. A latent defect is a defect that cannot be seen or ascertained upon a normal inspection of the property. The Seller will only be liable if he was aware of the defects and did not reveal the defects to the Purchaser.

With the implementation of the Consumer Protection Act (“the CPA”), confusion arose on the extent of the application of the CPA on Sellers and the Estate Agents.

The application of the CPA on the Seller has been discussed by numerous institutions and is it clear that the CPA only applies where the Seller is selling the property within the course of his business. Therefore, where the Seller sells a property and it is not in the course of his business, the transaction is excluded from the operation of the CPA the voetstoots clause will therefore still be applicable.

What about an Estate Agent?

An Estate Agent acts according to the mandate provided by the Seller, instructing the Estate Agent to sell the property on behalf of the Seller. The client of the Estate Agent is the party who provides him with the mandate. The Estate Agent therefore has an obligation to convey facts concerning the property that are, or should reasonably be, within the knowledge of the Estate Agent.

Will the Estate Agent consequently be able to rely on the application of the Voetstoots Clause?

When an Estate Agent sells a property on behalf of the Seller, he acts within the course of his business and therefore the CPA is applicable. The CPA is applicable on the mandate agreement between the Seller and the Estate Agent, and the marketing service the Estate Agent provides to the Purchaser, which must be in line with the Estate Agent’s code of conduct. The Estate Agent will therefore not be able to rely on the voetstoots clause to avoid liability, as he is acting within the course of his business.

The CPA makes provision for an implied warranty of quality and therefore, if the Estate Agent was aware of any patent or latent defect on the property, and did not disclose this to the Purchaser, the Estate Agent can be held liable for any loss due to this omission.

How can an Estate Agent and Seller avoid confusion on whether they had knowledge of the defects and if they had the knowledge, proof that it was disclosed to the Purchaser at the date of sale?

The best solution for the Seller and Estate Agent is the property condition report. The property condition report is initially completed and signed by the Seller and then provided to the Purchaser for signature. This must be done on date of sale to make sure all parties agree on the presence of any defects to the property and the parties’ knowledge thereof.

In conclusion: Although most of the Sale Agreements contain a clause affirming that the Purchaser acknowledges that he has inspected the property and accepts it together with its fixtures and fittings in the condition as is on conclusion of the agreement, the property condition report safeguards the Seller and Estate Agent against claims by a Purchaser for defects of which the Seller and Estate Agent did not have knowledge of. It is therefore a fundamental part of the Agreement of Sale of Immovable Property and must be treated as such by the Seller and Estate Agent.

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.