Legal Questions and Answers

Question1: I contracted a builder recently to add a bathroom to my house.  One afternoon I got home a bit early and noticed that my TV was missing - as was the guy who was supposed to be tiling, and who to my knowledge was employed by the builder! My domestic told me that someone arrived in a car earlier that day. The tiler simply went to the lounge, picked up the TV (flat screen worth around R7000) and walked out with it, packed it in the car, and never returned.  I contacted the builder who said that the tiler was indeed one of his workers but refuses to pay for the TV because he says he is not liable for what his workers do.  Where do I stand because I have no idea who or where the tiler is!

Answer:  We are dealing here with vicarious liability, i.e. where an employer is held liable for the damages caused by his employee.  The primary test which the courts have adopted is whether, at the time when the wrong was committed, the wrongdoer was acting in the course and scope of his employment, and in the furtherance of his employer's business.  Can it be said that the tiler in this instance was acting in the course and scope and in the furtherance of his employer's business?  

As far back as 1914 the Appeal Court already said that "an act done by a servant solely for his own onterest and purposes, and outside his authority, is not done during his employment, even though it may have been done during his employment".  Since then there have been a plethora of reported judgments and each case has different facts and merits, where employers have been held liable for intentional and fraudulent acts commited by employees which could never have been said to further the business of the employer (unless you are a member of a gang or theft syndicate, it never can!), yet the employers were held liable because the employer created the opportunity for the unlawful conduct and took no steps to stop it; or where the empoyer had a statutory duty to protect, but its employee chose to rather harm etc. 

It is always very difficult to predict what a Judge or Magistrate may rule when faced with a case such as this, because yes, the tiler was acting in the course of his duties (tiling) when the theft was perpetrated, but how did the employer benefit from the theft and without any doubt, one must accept that the tiler was certainly also not authorised to steal! However there is one recent Constitutional Court decision where the Minister for Safety and Security had to pay damages to a woman who was raped by on duty police men - although there the main reason was that cops have a statutory duty to serve and protect, not harm.  So even though the Minister for Safety and Security could never have authorised such misconduct and such acts could never be said to further the interests of the employer (Safety and Security), this nothwithstanding, the Minister was ordered to pay damages. There are in fact quite a few judgments over the years where the Courts hold Government departments liable for intentional misconduct by state employees, who act outside their authority, but during working hours. 

Another example is an employee who stole diamonds which were being held in custody by customs.  There too the Department was held liable for the loss where it was incurred due to theft, but in that case once again, it was a case where the State had a legal duty to protect those goods and failed to do so.  Farmers have been held liable for fires caused by cigarette butts thrown onto neighbouring land by their farm workers during lunch breaks! So in THIS case, will the builder be liable?  Well, if one goes back to the Great Grandfather of Precedents which I quoted above, I cannot see how.  But then again, considering how flexible other judgments have been, it is very difficult to predict.  My instinct however tells me NO, because his job was to tile and not to prevent theft. Had he been a security guard whose JOB it was to STOP theft it may be a different story, so I reckon the builder in this case may be able to avoid liability. (Given the small value involved - less than R7 000, go to the small claims court if you want to pursue this as there is no threat of legal fees being ordered against you!)

Question 2: My parents in law stay in a townhouse of ours. About three years ago we decided that they no longer have to pay rent and can stay there for free (just paying the levy every month) as my husband felt guilty for accepting money from them.  They are now getting a divorce and my mother in law moved out to stay with family of hers (she is unemployed).  My father in law (who is employed) on the other hand does not want to go anywhere (he wants to know “what has changed”).  Because my husband wants to remain the neutral party, he feels that he cannot provide for one, and not the other (we can simply not afford to accommodate both parties). My father in law does not seem to understand this and he feels that we should still pay for his accommodation as if nothing has changed (he is employed and does earn an good income).  Can you please advise us on how to go about this matter?   

Answer: I am afraid these types of situations call for wisdom more than legal intervention. Since I don't profess to have any of the former in much abundance, I will stick to what I know! By LAW, the gratuitous provision of free housing, EVEN TO a parent, can be terminated on reasonable notice.  If you cannot afford to provide housing to two individual parents and your husband finds the situation untenable then he will have to make a judgment call - Leave the matter as is, or ask his dad to vacate on one month's written notice (as proof). Once he has been given one month's notice to vacate, if he still does not leave after a month's notice, your husband must then also hand him a further letter (as proof) that he now cancels the usage agreement ("usage" because the lease agreement terminated when they stopped paying rent - it was basically converted to a usage agreement then, but that is not of much significance), as a result of which, dad will then be in unlawful occupation.  Your husband may then commence eviction proceedings in terms of the PIE Act (Prevention of IIlegal Occupation and Eviction Act).  I am afraid that this is all he can do by law, if dad decides to sit tight!  Frankly, I hope that this won't escalate to such drastic steps against his own dad, but at the same time, dad should also appreciate that he is putting your husband in a very unfair and most distasteful, position.  If he can afford his own place he should then either move out or start paying rent again.  Either way, your husband is fully entitled, in the absence of a fixed term agreement, to give him one month's notice. Best of luck...

Question 3: About 6 years ago my spouse, brother, sister in law and I purchased a house together, which my parents we renting at the time – my mother still lives in the house . During the 6 years my brother has only contributed about a year 's bond repayments. I undertook to cover the bond until he was financially stable – at this point he has not yet made a commitment and I am still covering the bond repayment. I have spent R27 400 on maintenance of the property. My brother has now recently seen to the inside of the house – ie tiling of floors and painting of house . About three weeks ago I told him that we need to sit down with all the paperwork and come to agreement – somehow he is trying to avoid this. Furthermore, I also cover the monthly municipality costs of the rate and water .
My questions are: 1. What percentage ownership do I have? 2. Can I draw up a legal document stating that I have contributed to 95 % of the costs of the property. 3. What legal grounds do I have?

Answer: This scenario sounds like a typical partnership or joint venture. If I am correct that this is indeed the case, then the problem you have is to prove who would be responsible for what with regards to each one's contribution etc, and who would be entitled to what? Your percentage ownership will automatically be an undivided one quarter share if the property was registered on all of your names as joint owners, or otherwise, a divided 25% share (i.e. in the sense that you can sell your 25% share to anyone you want). The only way to determine that is to see what the Title Deed says. As for the legal document, that should have been done 6 years ago, but oral agreements as to a partnership are perfectly enforceable as long as you can prove what the terms were, and that is where the difficulty lies most of the times. If each of you had initially contributed the same to but the property there may be a presumption that everyone would be 25% responsible for all the costs of upkeep, but that maty also not have been the case. I would suggest you seek proper legal advice on this as there are a number of issues which require further clarity before a YES or NO can be given. Lastly, if the agreement between you all was that each one would contribute equally you have a right of recourse against your brother to recover the pro rata share of what he was supposed to pay in. The lesson to be learnt here is that irrespective of whether you do business with a complete stranger or even your own brother, get it in writing FIRST to avoid complications later on, like this...

Question 4: A family member who is aged, takes up occupation with us. Before the time we agree that we will build on an additional room onto our house to accommodate her, at the cost of R150 000. It is agreed that she will pay for it. 15 Months later things don't work out quite as planned and we all agree that she will move into an Old Age home. Now she wants us to pay her back because our property has been improved by the additional room. During her stay we maintained her to the fullest extent save for her medical bills which were paid for by her medical aid. Are we liable to refund her for the improvement which was brought about by her desire to stay with us, and when she undertook to pay for it?

Answer: The closest resemblance I can think of here is the situation where a tenant who is renting immovable property decides to improve that property by affixing something of a permanent nature, and upon termination of the lease, wants to remove it. In the absence of any agreement which regulates the situation (I.e. what happens on termination) the common law dictates that any improvements to an immovable property which cannot be removed without irreversibly damaging the property, must stay, and tenant can NOT claim compensation if the lessor did not agreed to the improvement to start with. If it can be removed then the tenant must also restore the property to its original state at its expense.

In this case, it seems as if there was no specific agreement as to what would happen if the granny had to leave. There was an improvement which was brought about with the knowledge of the owner of the property, but no express agreement was reached, as to what would happen upon termination of the live-in arrangement. So now we turn to the common law again - was it either implied, or a tacit term (I.e. unspoken but, if prompted thereto at the time of contracting, would have been mutually agreed) that if the granny decides to no longer live there, because of whatever reason, she would have to be refunded? That is a purely factual question you must ask yourself and the bad news for granny here is that she will have to prove that there was indeed such a tacit term or that it was implied. Certainly the room cannot be "removed" so that is not an option.

I don't KNOW the answer but my gut feeling says that if at the time of "contracting", one were to ask, "And what were to happen if your relationship sours with granny and she must vacate - does she get her R150 000 back?", I would think the answer would have been something along the following lines: "We are building on because Granny wants to live with us and we are willing to accommodate her as long as she pays for the improvements. Who knows how long she will stay, but since she is the one who requested to stay here and has offered to pay for the improvements, then, if she should leave because she is no longer happy here, I don't see why I should then pay her for something I would not have wanted, or needed, to begin with. The only reason I am doing this is because she wants to and I am willing to let her. But if she leaves, then I get an extra room, but I won't pay for it. Those are my terms".

So whatever the answer to the question, she will have to prove that it was on the basis that if she leaves, whether after a day, month, year or more, she would have been entitled to a refund. Under the circumstances and from the info I have, seems granny may have a bit of a tough fight on her hands.