Jan L Jordaan

Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual harassment distinguishes it from behaviour that is welcome and mutual. According to the Commission for Conciliation, Mediation and Arbitration (CCMA), sexual attention becomes sexual harassment if:

a.  The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or

b.  The recipient has made it clear that the behaviour is considered offensive; and/or

c.  The perpetrator should have known that the behaviour is regarded as unacceptable.

Forms of sexual harassment

It’s important to understand what constitutes sexual harassment. Sexual harassment may include unwelcome physical, verbal or non-verbal conduct, but is not limited to the following examples:

a.  Physical conduct of a sexual nature includes all unwanted physical contact, ranging from touching to sexual assault and rape, and includes a strip search by or in the presence of the opposite sex.

b.  Verbal forms of sexual harassment include unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex-related jokes or insults or unwelcome graphic comments about a person’s body made in their presence or directed toward them, unwelcome and inappropriate enquiries about a person’s sex life, and unwelcome whistling directed at a person or group of persons.

c.  Non-verbal forms of sexual harassment include unwelcome gestures, indecent exposure, and the unwelcome display of sexually explicit pictures and objects.

d.  Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increment or other benefit of an employee or job applicant, in exchange for sexual favours.

Reference:

• The Commission for Conciliation, Mediation and Arbitration, Code of Good Practice on Sexual Harassment

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. Errors and omissions excepted (E&OE)

A transaction cannot be subject to both VAT and transfer duty.

Transfer Duty:

Transfer Duty is payable within six (6) months from the date of acquisition (the date of acquisition is the date on which the transaction was entered into, that is the date on which the last-contracting party signed the agreement).

If the Transfer Duty is not paid within this period, interest, calculated at 10% per annum, is payable for each completed month after the initial 6 months.

The 6 month rule applies regardless of whether the agreement is subject to any conditions. For example, if a seller accepts an offer to purchase on the 15 August 2017, subject to the purchaser obtaining finance by 15 September 2017, the date of acquisition is 15 August 2017, not the date on which the Purchaser meets the condition. Similarly, an addendum that sets out further terms or amendments to the original agreement does not alter the date of acquisition.

Do not think you can take advantage by cancelling an agreement and then entering into a new agreement in respect of the same property. Such a transaction shall be seen as having been entered into for the purpose of evading or avoiding transfer duty.

Transfer duty is based on the value of the property, not the price. In the case of a property acquired by way of a sale between a willing Purchaser and a willing Seller dealing at arm’s length on the open market, SARS will generally regard the purchase price to be the value of the property. But this principle may not always hold true.

Transfer duty is based on the highest of:

* The purchase price;

* The declared value, which is the value placed on the property by the parties to the transaction where there is no consideration; or

* The fair market value.

No transfer duty is payable if a property is acquired for R900 000.00 or less.

VAT:

It is common for developers to market properties by highlighting that buyers will not pay transfer duty. Instead, buyers will pay VAT of 14 percent, although this is included in the selling price.

The Transfer Duty Act exempts from duty the acquisition of any property that falls into the category of goods supplied subject to VAT. The payment of VAT always takes precedence over transfer duty where the supplier is a VAT vendor.

Transfer duty is payable if the seller is a registered VAT vendor, but the property does not form part of the seller’s enterprise. For example, if a VAT vendor sells his or her private residence, transfer duty does apply, because the property is not being supplied as part of the vendor’s business. If the seller is not registered for VAT, but the buyer is and will use the property in the course of his or her VAT enterprise, the Purchaser will pay transfer duty, but will be entitled to claim a notional input tax.

No Transfer Duty or VAT

It is possible for a property purchase to be free of both transfer duty and VAT. In terms of the VAT Act, a transaction may be zero-rated (VAT applied at zero percent) if the following requirements are met:

• Both the seller and the buyer are registered as VAT vendors;
• The seller and the purchaser agree in writing that the property is sold as a going concern;
• The property is used for the purpose of earning an income;
• The sale of the property includes all the assets required for carrying on the income-earning activity; and
• The seller and the purchaser agree in writing that the purchase price is inclusive of VAT at the rate of zero percent. 

Further Exemptions: No Transfer Duty or VAT

Property transfers are exempt from transfer duty in the following circumstances;

* Marriage in community of property. If someone who owns a property gets married in community of property, his or her spouse will automatically become the owner of a half-share of the property, without paying any transfer duty.

* Divorce. Transfer duty does not apply if a property is awarded to a spouse in terms of a divorce order. The exemption applies to all marital regimes and to civil unions. However, if the property is not awarded to a spouse in terms of a divorce order and the parties reach an agreement outside of the formal divorce proceedings, the spouse who acquires the property will be liable for transfer duty.

* Inheritance. Heirs and legatees (beneficiaries) are exempt from paying transfer duty on property inherited from a deceased estate, regardless of the nature of their relationship with the deceased and irrespective of whether or not the deceased died intestate (without a valid will).

* Rectifying of registration errors. No duty is payable when an error in the registration of the property is corrected, provided the transfer duty applicable to the acquisition has been paid.

* Transactions declared void by a court. If a transaction is declared void by a court and the property is transferred back to the original owner, there is no transfer duty to pay.

* Transfers to trustees, administrators, beneficiaries and insolvent persons. Although transfer duty is payable on transfer to a trust, it is not payable in certain instances, such as when:

• The registration of a property is changed because a trust or an insolvent estate appoints a new trustee or administrator.
• The administrator of a trust transfers a property to someone who is entitled to it in terms of a will or other written instrument. This exemption applies only to testamentary trusts and inter vivos trusts where the beneficiaries are related to the founder of the trust.
• A trustee transfers property back into the name of a previously insolvent person.

Freel