PAIA Manuals – Final Deadline Looms!

 

It’s six years now since we were all bombarded with warnings to comply with the Promotion of Access to Information Act (PAIA),
which requires all public and private bodies to prepare, lodge and publish (including on any website you have) a PAIA information manual.

 

Then, at the last minute (literally), most smaller businesses were let off the hook – their original deadline of 31 August 2005 was extended
until 31 December 2011. At the time, hopes were expressed that small businesses might be exempted altogether.

 

 

And of course there might indeed be another last minute extension or exemption. But at the moment it seems most unlikely, so this is an early warning message – don’t leave it to the last minute, get your manual together now!

 

Note: Every business operation, no matter how small, falls into the net here – the definition of “private body” includes any person or partnership carrying on “any trade, business or profession”, together with any “juristic person”.

 

 

  

Contractors And Defective Construction: What Can You Do?

 

Where a contractor’s work is defective, you must allow him an opportunity to remedy the defects where he is “willing and able” to do so.

 

So held the Supreme Court of Appeal recently, finding that a contractor, engaged to construct a container depot, was entitled to cancel the contract because it was denied an opportunity to remedy defects in the works. The contractor’s cancellation came after the employer held back payment in terms of an interim certificate and instructed the contractor to cease all remedial work, feeling that the method employed to remedy the defects was inadequate.

 

The employer then claimed damages from the contractor for breach of contract, but its claim failed. The Court held that “where a contractor is willing and able to attend to defects that manifested themselves prior to final completion being reached ……, such contractor cannot be in breach …… provided he remedies such defects with due skill, diligence, regularity and expedition”.

 

Bear in mind that every case will be different, and that your particular construction contract may have specific terms impacting on disputes over defective work – take advice in doubt!

 

 

 

Zoning Contraventions: Can Long Usage Make Them Lawful? 

 

If a property has been openly used for decades in contravention of its zoning restrictions, you might think that the local authority has lost its right to enforce the land use restrictions.

 

Not so. The High Court has made it clear that a statutory body (such as a municipality) does not have the power to waive its duty to enforce zoning laws.

 

The case in question related to land which, though zoned for agricultural and residential dwelling use only, had for some 25 years been used openly for business purposes. Indeed the whole area had gradually changed in character over a 30 year period, with many other properties having also migrated to business use.

 

When the municipality eventually applied for an interdict to stop the owner and occupants (an electrical engineering services company and a furniture manufacturer) from continuing to use the premises for business, several defences were raised: –  

  • “Acquiescence waiver” by the municipality
  • Undue delay in enforcement
  • Radical changes in the character of the neighbourhood
  • Selective (and therefore unconstitutional) enforcement  

Commenting that “a local authority as a representative body, cannot waive rights which are entrusted to it for the public benefit”, the Court rejected all these defences, and granted the interdict. Even if the municipality had for years failed to enforce the town planning scheme (which it denied), it still had a duty to uphold the law and to enforce it.

 

The owner and businesses were accordingly ordered to cease operations immediately, with no recourse other than to go through the lengthy and uncertain process of applying for rezoning or consent use. To compound their pain, the Court awarded costs against them on the punitive attorney and client scale.