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Ed Harris

Consultant, Conveyancing

Knysna

ed@mpc.law.za

044 382 5333

044 382 5721

083 432 2428

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Ed Harris, a consultant at the firm, practises in the fields of conveyancing and liquor law. He joined Mosdell, Pama & Cox Inc.’s Knysna office in October 2009.

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Ed Harris, a consultant at the firm, practises in the fields of conveyancing and liquor law.

He holds a BA LL.B degree from Rhodes University. He is admitted as an attorney, notary public, conveyancer and auctioneer, and was a partner at a firm, Minchin and Kelly, in Mafikeng for 20 years.

Ed was a founder member of the Law Society of Bophuthatswana in 1986 and served as president from 1989 to 1992. He moved to Knysna in 1997 and practised in partnership and for his own account until he joined Mosdell, Pama & Cox Inc.’s Knysna office in October 2009.

Education

BA
LL.B

Admissions

Attorney of the High Court of South Africa
Conveyancer of the High Court of South Africa
Notary Public of the High Court of South Africa

Administration of Estates

Business

Commercial Contracting

Liquor Licensing

Nuptial Service

Property

Consolidation and Subdivision

Property Transfer

Servitude

Will and Trust

Why Should My Conveyancer Attend To The Transfer Of My Property?

28 April 2021, Ed Harris

"I’ve sold my house and would have given the transfer to you, but the buyer asked me whether his attorney... could do it, to which I agreed because after all, it’s just a transfer”. How often have attorneys heard this statement? Only conveyancers may attend to the transfer of fixed property and not all attorneys are conveyancers, which requires an extra qualification. All conveyancers are attorneys, however. The rule is that the seller has the prerogative to choose the transferring attorney which may seem rather strange, considering that the buyer pays the transfer costs. If the seller does not have an attorney, the estate agent should provide the seller with a choice of attorneys and only if the seller is still uncertain, the agent may recommend one. Unlike some countries in Europe and the UK it is unnecessary for the buyer to have his own attorney because all attorneys are officers of the court and bound to act in an ethical manner towards both parties. In the case of a dispute however, the transferring attorney must go with the transferor. There are three basic reasons why you, as seller, should choose your attorney and they are as follows: 1. So that your attorney controls the finances. 2. So that your attorney ensures that all conditions are timeously met. 3. In the case of a dispute, your attorney will act for you. Not many people realise how important it is for their attorney to control the finances. Such control is necessary because there is invariably a time limit placed on payment by the buyer, whether it be in cash, partially in cash and partially with a bond or completely with a bond. Your attorney will ensure that conditions are met, and time limits are adhered to, failing which the appropriate action will be taken. Should the buyer’s attorney on the other hand control payment, there is every likelihood that the attorney will be much laxer about enforcing performance. After all, they enjoy an attorney and client relationship with the buyer, which you as seller, do not. This may result in delay or non-performance which can be very detrimental to you. Should the matter end up in a dispute, the buyers attorney will act for him, with all the inside information at his disposal, and you will have to look for another attorney. Furthermore, all monies will be held in that attorney’s trust account and if there is a “rouwkoop” (forfeiture) clause in your favour, you will have very little chance of recovering it. Do not be fooled in the case of a “double” transaction by the idea that because the buyer’s attorney may also be dealing with the transfer of the buyer’s own property it will be easier for him to deal with both transactions. Any old and new bonds over both properties will probably be dealt with by other attorneys anyway. As to costs, you do not save any costs, and nor will it cost you more because the transferee bears the costs. What happens if the buyer’s transaction fails? Further, all attorneys except city practitioners need correspondents to lodge transfers at the seat of the Deeds Registry and if there is more than one attorney, they simply liaise with each other at no extra cost to you or the buyer. Because they are not adversarial, many people do not regard property transfers as true legal matters; accordingly, it does not matter who does the job as long as it is done! This is only true if no problem arises and believe you me, they often do! On a personal note, if you have your own attorney, you will usually have a special relationship with him and if you do not give him the transfer, you will damage that relationship, besides depriving the attorney of a substantial fee, which is after all, his bread and butter. Because of the trust placed in attorneys by their clients, they have a special obligation to protect their client’s interests and are required to help them through thick and thin. Further, because the purchaser pays the costs, it is not going to cost you anything to refer the transaction to your own attorney.

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What is a Notary and how can a Notary help me?

29 March 2021, Ed Harris

“A notary is a public functionary authorised by the High Court to draw and attest contracts and other documents and... to authenticate public acts”. Elliot and Banwell Page 1 of The South African Notary. In South Africa, a notary is required to be admitted as an attorney first, ensuring a sound general understanding of the law. There is a high tradition of honesty and reliability attached to the office of notary and the legislature and courts place special reliance on notarial acts. This means that where it is deemed necessary to invest documents with particular solemnity, it is often laid down that they must be notarially executed. The most common examples of this are Antenuptial Contracts, Sectional Title documents and bonds over movable property, where the rights of persons not parties to the contract may be affected. Generally, there are three principal activities attended to by notaries: Drafting and executing notarial deeds, i.e. the deeds are “attested” by the notary public. The authentication of signatures. The certification of copies of documents as correct or that they are “true” copies of the original. Formal documents executed in South Africa for use outside its borders must be authenticated before they will be recognised in the countries where they are used, and the authority of notaries to affect the necessary authentication is almost universally recognised. If the document is a “public” document however, it must also be Apostilled. The person entitled to Apostille it in terms of Section (1)(2)(c) of the Apostille Act of 1961 is a person in an official capacity or an officer endowed with the power to execute the document by the state. The Hague Convention Abolishing the Requirement for Legalisation of Foreign Public documents is an International Treaty, the source of the Apostille, drafted by the Hague Conference on Private International Law on 5 October, 1961. This only covers signatories to the Hague Convention, of which South Africa is one. Documents of non-signatory states are governed by slightly different rules. The Haque Convention dictates how a document can be certified for legal purposes in other signatory states. This certification is called an Apostille where the appointed government official checks the signature and seal on the documents, checking their own records to validate the signature and seal, and attaches their own authorization seal and signature. In this country all documents relating to Home Affairs, Education etc., e.g. birth certificates, marriage certificates, death certificates, and degree certificates are public documents which are not authenticated by notaries, but by the Department of International Relations and Co-operation (DIRCO) in Pretoria. Education has an added twist in that the relevant certificates must first be obtained from the Educational Institution concerned, then sent to the South African Qualification Authority (SAQA) for verification, whereafter they go to DIRCO. If the original certificate needs to be retained, one first needs to obtain a duplicate original from the issuing institution. All other documents including powers of attorney, identity documents etc. are authenticated by the notary who attaches his/her own certificate and then sends them to the Registrar of the Hight Court for apostilling.

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Can a liquor licence be sold or leased?

22 March 2021, Ed Harris

Two questions which are often asked about Liquor Licenses are:1. Can a Liquor License be sold? 2. Can a Liquor... License be leased?The first question often arises when a liquor licensed business in existing premises is sold. A Liquor License per se cannot be sold but a business with a Liquor License can, bearing in mind however that the Liquor License must still be transferred to the purchaser. This is because the business is a saleable commodity whereas the license is a right which cleaves to the person (natural or juristic) and the property, i.e. it is person and place specific.In the light of the above, provision must always be made in a sale of business agreement with a license for the transfer of the Liquor License to the purchaser. The transfer is done by way of application and the transferee of the license must be approved by the Western Cape Liquor Authority (in the Cape), which naturally means that all the criteria for the lawful holding of a license by the purchaser must be met.It must be remembered that every application to the Authority takes up to six months to be approved, which means it is impractical to make a sale subject to a suspensive condition that the transfer is actually granted. To cater for this, provision must be made in the contract for the co-operation and assistance of the Seller to transfer the license.In order to overcome the impasse created by the slowness of the transfer process, the Authority has created a bridging procedure called an “Application for Consent to Conduct Licensed Business Pending Transfer” in terms of Section 65(3), which is supposed to be attended to by the Authority on an urgent basis. This was obviously intended for a “close today, open tomorrow” scenario. The trouble is this is just not the case. To ameliorate this break in continuity, what normally happens is that the local police officer is usually happy once the Section 65(3) is submitted to him/her, i.e. you are following due process. The complication here is however that the appointment of a manager still has to be authorised by the Authority, with the manager being required to do a very short manager’s course put on by the Authority; luckily this can now be done on-line.A situation which often arises is a licensed business closes down because the premises become unavailable and the holder tries to “sell” the license only.Do not even consider purchasing such a license because you will then be faced with the unhappy scenario where you will first have to take transfer of the license and then apply for its removal (relocation) to new premises. A removal is just about as onerous as a new application! The answer is simple, rather apply for a new license!Another common scenario is where a business simply closes down, but the premises are still available. Here it is feasible to purchase the “rights” to the license and simply take transfer from the current holder. Because you still have to take transfer of the license however, which means it is not yet a done deal, do not pay more than a token price.As to whether a Liquor License can be leased, this question often arises when a landlord wishes to hold the licence in his/her own name for the purpose of continuity and lease the business (with license) to a lessee. While this may seem expedient from a practical point of view because lessees come and go, it is not allowed in law. Prior to the coming into operation of the 2008 Act in 2012, it used to be common practice to appoint the lessee as manager but for him/her to actually conduct the business for his/her own account. While this actually still happens, it is unlawful. The Act makes this quite clear in Section 32(1) which reads “A person may not……sell liquor unless authorized to do so in terms of a license issued in terms of this Act……….”. This means any person or body selling liquor must be licensed to do so!

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TEMPORARY LIQUOR LICENCES IN TERMS OF THE WESTERN CAPE LIQUOR ACT 4/2008

25 September 2019, Ed Harris

A question often asked by prospective liquor licence applicants is, can I get a temporary liquor licence while I... wait for my permanent licence? This question is particularly pertinent when one considers that a licence takes at least five months to be granted. In the case of a liquor store licence the answer is no but in the case of an on-consumption licence there is the possibility of obtaining an “event” licence in the interim. Because there was no other way to do it, one used to be able to “borrow” someone else’s licence on a temporary basis before the before the coming into operation of the new Western Cape Liquor Act (in 2012), but this is no longer allowed. This would be done on the basis that a friendly existing licence holder would extend his licence and “use” your premises for a period not exceeding 30 days. Of course, you would in fact conduct the licence for your own account. An Application for a temporary liquor licence still exists but this is restricted to use by existing licence holders for short periods of time when they use it for themselves at markets, exhibitions, festivals etc. The Liquor Act makes provision for an event licence that does not require one to be the holder of a licence, which means that a prospective licence holder can apply for such a licence as an interim measure for a maximum period of approximately 3 months, “approximately” because the period is not laid down in the Act. By implication this should be of reasonably short duration however. The subsection in the Act was probably designed for once-off events for a limited period of time, not to accommodate “temp” licences to cover initial unlicensed waiting periods but the fact is that if one can justify that it is an ongoing continuous event, it is possible to obtain an event licence for a fairly extended period. One has to go to the extra mile however by way of posters, programs and the like to prove that it is actually an event.

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Why should your conveyancer attend to the transfer of your property?

31 March 2016, Ed Harris

I’ve sold my house and would have given the transfer to my own attorney but the buyer asked me whether... his attorney could do it, and I agreed because after all, it’s just a transfer isn’t it?

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Article

Can I drink in public places?

04 November 2015, Ed Harris

The question has been posed – is it legal for people to drink in public in the Knysna Municipal area?... When one considers the relevant legislation and municipal by-laws, the answer is a clear “no”.

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Is the legal drinking age being raised to 21?

31 August 2015, Ed Harris

Proposed changes to South Africa’s liquor laws have caused much consternation and angst amongst business people and liquor licence holder’s... country-wide. Of particular concern is the mooted (and highly contentious) raising of the national minimum drinking age from 18 to 21 years.

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