2017 SUR­VIVAL GUIDE (TS & CS AP­PLY)

All par­tied out yet? You might have some new year’s res­o­lu­tions in mind but put self-preser­va­tion first and al­ways – al­ways – read be­fore you sign on the dot­ted line

The Star Early Edition - - FRONT PAGE -

GOOD rid­dance to 2016. For many peo­ple, it was an an­nus hor­ri­bilis. With our econ­omy in the dol­drums, 2017 is not pre­dicted to be any eas­ier.

Com­pound the coun­try’s do­mes­tic is­sues with global warm­ing, ter­ror and the tu­mul­tuous state of world pol­i­tics, and things can feel some­what over­whelm­ing.

But hu­mans are in­trin­si­cally an op­ti­mistic species and we’re buoyed by the new year. Per­son­ally, I’m over­joyed to see the back of a tough year and have taken a few sober­ing lessons from 2016.

As a con­sumer, one of my most star­tling wake-up calls came at the very end, in De­cem­ber. While search­ing des­per­ately for a gar­den­ing ser­vice, I was alarmed to en­counter a shod­dily drafted con­tract po­ten­tially so oner­ous on the client that I re­solved to ex­er­cise far greater cau­tion be­fore agree­ing to any terms in fu­ture.

Chancers ev­ery­where

The ser­vices ren­dered by the gar­den­ing com­pany in­clude the usual main­te­nance spiel of mow­ing, trim­ming, turn­ing of flower beds, pool clean­ing and so forth, in­clud­ing some op­tional ex­tras. No prob­lems there un­til you reach clause five, in which the client agrees to a two-month ter­mi­na­tion no­tice (con­trary to the Con­sumer Pro­tec­tion Act, which re­quires a 20-busi­ness day no­ti­fi­ca­tion pe­riod).

That “small” mat­ter en­cour­aged me to read what I was po­ten­tially sign­ing even more thor­oughly.

Those wor­ri­some clauses came a lit­tle fur­ther down: un­der sec­tion 8, which out­lined dis­pute res­o­lu­tion: “If in the event of a dis­pute aris­ing be­tween the par­ties, each of the par­ties con­sent (sic) to the re­fer­ral to the ex­pert de­ter­mi­na­tion of any dis­pute…

“The ex­pert shall be an ad­vo­cate who has prac­tised no less than 10 years at Jo­han­nes­burg Bar or al­ter­na­tively an in­dus­try ex­pert of not less than 10 years’ ex­pe­ri­ence, such ex­pert to be mu­tu­ally agreed upon be­tween the par­ties. Should the par­ties be un­able to agree on an ex­pert, then and in such event the mat­ter will be re­ferred to the Jo­han­nes­burg Bar Coun­cil for such ex­pert to be ap­pointed by them.

“The ex­pert shall act as an ex­pert and not as an ar­bi­tra­tor. The ex­pert’s find­ing, in­clud­ing an or­der for the cost (sic). Shall be fi­nal and bind­ing on the par­ties and may, on ap­pli­ca­tion, be made an or­der of court.”

So, the client agrees to ei­ther an ad­vo­cate (and their stiff fees) or an “in­dus­try ex­pert”, who will “act as an ex­pert – but not as an ar­bi­tra­tor”?

To bor­row from Lewis Carroll’s Alice in Won­der­land, it gets “cu­ri­ouser and cu­ri­ouser”.

“In the event of (the com­pany) hav­ing to in­struct an at­tor­ney to en­force its right against the client, then client shall pay (the com­pany’s) at­tor­ney and own client cost in­curred.”

Not sign­ing life away

Alarm bells clanged and I in­formed the com­pany that I was quite sat­is­fied with their quote but would not be pre­pared to sign such a con­tract. They promptly in­formed me they would not be able to of­fer a ser­vice. No sur­prises there.

I might be over­cau­tious, but con­tract law is a vi­tal spe­cial­i­sa­tion and an in­valu­able skill.

Your new year’s res­o­lu­tion might be to lose weight/tighten your belt, shun sugar, ditch carbs, cut out booze, walk the dogs more reg­u­larly or go to gym. These are all jolly wor­thy life­style changes but as an act of self-preser­va­tion, al­ways – al­ways – read the terms and con­di­tions of any con­tract.

Whether it’s for a gar­den­ing ser­vice, time­share, a lease agree­ment, a “loan agree­ment”, a build­ing project (how­ever big or small), or a car rental – know what you’re sign­ing up for so you aren’t in for any sur­prises.

Plain English... or an of­fi­cial lan­guage

You have the right to in­sist that the terms of any con­tract be ex­plained in lay­man’s terms – plainly and un­der­stand­ably. And those terms can­not be un­fair or un­nec­es­sar­ily oner­ous ei­ther. Prece­dent for this was set on Oc­to­ber 23, 2012 in the Dur­ban High Court, which was lauded as a vic­tory against legalese and un­fair con­tract terms.

A Mr Dlamini had bought a sec­ond-hand car but four days later the ve­hi­cle suf­fered a cat­a­strophic me­chan­i­cal fail­ure. It was not drive­able and had to be towed back to the deal­er­ship, so he rightly asked for a re­fund. But his fi­nanc­ing bank in­sti­tuted a claim for the car’s re­turn and other as­so­ci­ated costs, try­ing to put the onus on the client by ar­gu­ing that he should have been more care­ful about sign­ing that con­tract and that he’d in­di­cated that he agreed to its terms.

But what if he didn’t un­der­stand the im­pli­ca­tions of what he was sign­ing?

Judge Dhaya Pillay ruled that bind­ing Dlamini to the con­tract’s terms would amount to un­fair dis­crim­i­na­tion. Im­por­tantly, the Na­tional Credit Act gives con­sumers the right to doc­u­ments in their of­fi­cial lan­guage and in plain lan­guage.

The NCA also gives con­sumers the right “to be in­formed by rea­son­able means of the ma­te­rial terms of the doc­u­ments he signs”.

Cred­i­tors must be able to prove they have taken rea­son­able mea­sures to in­form con­sumers of con­trac­tual terms and their con­tracts must com­ply with the law.

So that gar­den­ing ser­vice com­pany is in breach on a num­ber of lev­els. I’m rather glad I didn’t sign.

Read your terms and con­di­tions this year. It will save you far more ag­gra­va­tion than the dis­com­fort of a cou­ple of ex­tra ki­los, a hang­over and a shock­ing diet will bring you

GREENHORN: Don’t be taken to the clean­ers; only sign legally bind­ing con­tracts.

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