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Ask Freddie Lombard Your Own Question
Freddie Lombard
Freddie Lombard, Attorney
Category: South Africa Law
Satisfied Customers: 2401
Experience:  Practicing attorney and conveyancer with 16 years post article experience.
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I have share block in Mabalingwe timeshare (two weeks).

Customer Question

I have share block in Mabalingwe timeshare (two weeks). We've owned them for 26 years and want to be released from our ownership. We've been unable to sell them and the resort does not want to take them back. We are older now and have no use for these timeshare weeks. Can you help?
JA: Real Estate issues can be tricky and expensive. The Lawyer will need to help you with this.
Customer: What do you mean by expensive? How expensive?
JA: Have you talked to a lawyer yet?
Customer: No.
JA: Anything else you think the lawyer should know?
Customer: We live in Canada.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 3 months ago.
Category: South Africa Law
Expert:  Freddie Lombard replied 3 months ago.

This is a very difficult question, and unfortunately not one with a clear an simple answer.

The current situation is unclear, and has not been tested in a Court. The Consumer Protection Act (CPA) makes provision for the cancellation of fixed term contracts in certain circumstances, and under certain conditions. The problem with these time share agreements is that they are not fixed term contracts and they are in fact contracts that are binding in perpetuity.

The effect of this is that the CPA is not specifically applicable to them.

And, the only manner to cancel these type of agreements is BY AGREEMENT between the parties, and from my experience, the provider will only consider a request for cancellation in the event that the consumer is up to date with all their payments due for the points, levies and other charges. Even then, the consumer can only request cancellation, and the provider can, in terms of the contract and constitution of the company refuse such a request.

To cancel the agreement due to (for instance) the non performance of the provider, is very difficult, because the small print basically absolves them from any responsibility - they NEVER guarantee that accommodation at the chosen resort will be available for instance.

The long and short of it is, that a Court will always give preference to rather enforcing a contract than to cancelling it. This is mainly due to the fact that the Courts do not want to create any uncertainty in the law, and once contracts become "cancellable at the whim of a party" the law will become completely uncertain. The fact is that when the contract was signed, it was by agreement, and it is therefore accepted that the parties accepted the terms and wanted to enter into the agreement, and that they understood the contents and consequences.

In other words, the courts will not lightly involve itself with the contract and unless it can be shown that the contract is illegal or against the public interest, they will allow people to freely contract with one another

I know that this is probably not the answer you wanted, but I try my best to provide you with an accurate answer in accordance to the current legal position in SA. I do wish that I could give you some better news, but I also believe it is in your best interest to have the correct news rather than incorrect good news. Please remember this when rating the service.

I hope this answered your question.

I know it will take an extra minute of your time to rate my service, but if you do not rate it, I do not get paid by the website so I would really appreciate it if you would be so kind as to rate my service positively. Feel free to ask further question here on this topic at no extra cost if you need more information.


Customer: replied 3 months ago.
This is basic contract law and does not provide me with anything beyond what I already knew. I was interested in finding out about my options and whether the contract is enforceable in Canada. We have paid our fees for 26 years-- does that not help us?
Customer: replied 3 months ago.
I don't think this is helpful to me at all. Sorry. I somehow expected more.

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