Legal Hero Cup Soccer Tournament

The Legal Hero Cup Soccer Tournament took place last week Saturday at Sun City Prison. We are excited to share some photos with you! 

First match: Centre B vs Centre C. 

Second match: Centre A vs Corporate Corrections. 

The final saw Centre A vs Centre B battle it out. After a nerve-racking match, we are proud to announce that Centre B, Medium B took home the Legal Hero Cup. 

In the photo below from left to right: National Business Executive Mr. Chris Madonda from Legal Hero, Special Organizing Manager Mr. Langa, Mr. Manamela from Medium B and Mr. Mnambo from Medium B. Special thanks to Deputy Director and Staff Support Coordinator Mr. Mogomotsi.

Sport unites. Times in South Africa are tough. The true heroes are those who brave on, smile and work actively towards a brighter future, together. 

#16Days #orangetheworld

As you may know, the 16 Days of Activism for No Violence against Women and Children campaign runs from 25 November - 10 December each year. While it is very important to support the 16 day campaign, we also need to remember that the emancipation of women and children is a 365 days a year undertaking. #orangetheworld #16Days

Drinking & Driving 101 – what happens next?

Let’s say I get behind the wheel after a few too many drinks. Next I get pulled over by a Police Officer who suspects that I am over the limit… what happens next?

THE PROCESS:

1. Pulled over and the Police Officer suspects that I am over the limit.


2. Breathalyzer proves that I am over the limit (0.24mg per 1000ml).

3. Taken by SAPS member for blood tests at an alcohol testing center.


4. My car may be taken to the Police Station and keys held until my release.


5. Registered medical practitioner takes a blood sample and relevant forms are completed, which includes details of my physical appearance and ability to perform certain tasks, such as the Romberg Test to check my stability or lack thereof. Necessary force may be used. Blood test needs to be performed within 2 hours of my arrest or being pulled over by members of SAPS. I therefore need to make a note of the time period.


6. I should make my phone call to Legal Hero (or a loved one who will alert Legal Hero). Important information: Time of arrest, Police Station where I am being held, Charge, my policy number or ID number, next of kin details.


7. I am placed in a holding cell at the Police Station (usually 4 hours to sober up), but this may vary according to my level of intoxication.


8. During this time Legal Hero contacts the Police Station to firstly confirm my arrest and then to try arrange Police Bail.


9. Once all paperwork has been processed and I am released on Police Bail (with or without having to pay bail) and once sober, I will be informed to return to Court for a quick appearance, which will be my first appearance. My case will then be postponed in order for the State to proceed with its investigation which will included: obtaining witness statements, formal procedures attended to by the arresting Officer (this is called the chain of events), obtaining blood results from the appointed lab. This process of investigation may take several months to complete.


10. Return to court for further appearances and most probably further postponements up until the State has concluded its investigation and is ready to proceed with trial.


11. Final appearance in Court for the hearing/s of my matter.


12. Possible outcome: Criminal record, jail time, large fines and/ or license suspended.


13. There is a small chance that a diversion may be granted (community service/ etc. with no Criminal record).





THE LEGAL LIMIT ACCORDING TO THE ROAD TRAFFIC ACT 93 OF 1996

Breathalyzer: 0.24mg per 1000ml

Blood test: 0.05g per 100ml

Whilst driving a vehicle OR occupying the driver’s seat of which the engine is running… on a public road. 

DO NOT DRINK AND DRIVE. EVEN THE SMALLEST AMOUNT OF ALCOHOL AFFECTS YOUR DRIVING ABILITY. STAY SAFE THIS FESTIVE SEASON.

Drinking & Driving 101

#Arrest101

An arrest often happens when you least expect it. Sometimes, in less serious cases, you are granted Police Bail. This is when you may leave the Police Station’s holding cell, go home and then return for the Court appearance.

However, sometimes what is required is a formal bail application in Court. This is when you need to remain in the holding cell and wait for your Court appearance (must happen within 48 Court hours).

Just this morning one of our Policyholders appeared in Court following his arrest on Sunday (yesterday). The Legal Hero Policyholder luckily remembered to contact our 24/7 bail line. This morning his Attorney - paid for by Legal Hero at no extra charge/ no excess fee to him - attended to his formal bail hearing in Court and managed to have all charges against our Policyholder withdrawn by virtue of mediation entered into with the State.

Depending on certain factors such as the type of charge involved (the seriousness thereof) and whether the accused has committed any previous convictions, the State is inclined to extend a “helping hand” to an accused who has strayed by referring criminal charges for mediation. This is in an attempt to resolve the matter in an amicable manner between the accused and complainant. However, should the accused try to misuse or make a mockery of the State’s kindness, mediation will not be offered and the case will run its normal course.

Have a great day!

Legal Hero 

www.legalhero.co.za

October 2015 Hero of the Month Award

Our Hero of the Month Award goes to Warrant Officer Hlela based on his remarkable conviction rate! We applaud his bravery and dedication to the investigation that helped ensure the following convictions and sentences:

1. ACCUSED NO.1: 7 COUNTS OF RAPE: SENTENCE: 7X LIFE IMPRISONMENT; 

2. ACCUSED NO.2: 5 COUNTS OF RAPE: SENTENCE: 5X LIFE IMPRISONMENT AND 12 MONTHS ON COUNT OF THEFT OF CELLULAR PHONE.

From right to left: Pinetown Cluster Commander Brigadier van Rensburg, National Business Executive Mr. Madonda, Warrant Officer Hlela and Vispol Commander Brigadier Mgobhozi. 

We salute the brave men and women in SAPS who keep us safe.

Yours truly, 

Legal Hero 

www.legalhero.co.za 

Frequently used legal cost insurance lingo

A legal cost insurance product would typically cost you between R40 and R270 per month and would normally empower you with R40 000 – R200 000 legal cover per year – subject to the terms and conditions of your policy wording.

Speaking of the terms and conditions of your policy wording, do you really understand all the lingo and insurance mumbo jumbo used? We have compiled a short list of frequently used industry terms for your convenience.


Commencement date: This is usually the date on which your first monthly premium is paid and your policy is activated. This date may, however, change to a later date if you skip a payment. More importantly, this date is used to determine whether you are covered for a specific legal incident. Similar to vehicle insurance where you cannot crash today, take out vehicle insurance tomorrow and then demand cover/ your car to be fixed at the vehicle insurance’s expense, legal cost insurance typically only covers legal problems that occur after the commencement date, when you are already a paying policyholder.

Cause of action date: This is the date on which your legal problem originated. For litigation cover, this date must fall after your commencement date. If you are claiming for your divorce to be covered, the legal cost insurance industry would most probably ask when was the last time you and your spouse slept together/ when was the first time your spouse moved out of the room or house. You may be requested to sign an indemnity form, promising that all facts presented to the legal cost insurance company are true and that, should it be proved otherwise at a later stage, your fraud will for example also result in you paying the entire legal bill yourself.

Just to use another example: if you are seeking legal cover to institute a claim against someone owing you money, the cause of action date will be the date this person first defaulted and failed to pay in terms of the agreement between you two. Thus the cause of action date is not the date you two first entered into a loan agreement, but the date he/ she defaulted and failed to pay in terms thereof. This default date must then fall after the commencement date of your policy.

Litigation rejection letter: If you request litigation cover and it is rejected, the legal cost insurance company must provide you with a written rejection letter stating the reasons why you will not be covered. You may send this letter, together with a copy of the terms and conditions of your policy guide, to the Ombud for Short-term Insurance should you not be in agreement with the reasons provided.

Statutory disclosure: This is a document sent out with your policy documentation and you MUST by law receive a copy of the legal cost insurance company’s statutory disclosure. This disclosure must contain the details of the Ombud for Short-term Insurance, the details of the Insurer, company details and the details of the company’s compliance officer. Keep this document safe. A legal cost insurance company is typically underwritten by a bank or an insurance company to ensure further protection of the policyholder. Legal Hero is for example underwritten by Guardrisk Insurance Company Pty Ltd.

Should there be any other jargon worrying you, please feel free to reply in the comment section below.

Knowledge is power. We wish you a wonderful Friday and weekend.

Yours sincerely,

Legal Hero

www.legalhero.co.za

Equal protection of the law?

The only problem is that the law is very expensive. People earning less than R5500 per month may have access to free Legal Aid. The rest may need to fork out hundreds of thousands for legal help. Unless you have legal cost insurance = payment of an affordable and fixed monthly premium that pays out and covers you in your future moment of need. 

Section 9 of the Constitution of the Republic of South Africa, 1996 further reads, 

‘Everyone is equal before the law and has the right to equal protection and benefit of the law.’ 

The truth is that everyone is not always equal before the law if you cannot make use of the law (when you do not know how to enforce your rights, do not qualify for free legal aid and cannot afford the assistance of a private legal professional). 

Legal cost insurance is not a new concept and started out in the United Kingdom and Canada. Often referred to as ‘pre-paid legal services,’ protection is secured for future legal and litigation costs as per the terms and conditions of the relevant policy. Different to life insurance, legal cost insurance is a short-term insurance product. It is vigorously regulated by many acts with a few more developments on the horizon. Treating customers fairly is paramount. 

Legal cost insurance also has its own Ombud. The Office of the Ombudsman for Short-Term Insurance acts as a mediator/ arbitrator to assist consumers with complaints concerning service or a litigation rejection received in contrast with the terms and conditions of the policy. The service is free, however, only available once the complaint has been lodged with the legal cost insurance company first. If the complaint remains unresolved, same may be sent to the Ombud: P.O. BOX 32334, Braamfontein, 2017. Tel: (0860) 726 890 / (011) 726 8900 | Fax: (011) 726 5501. Email: info@osti.co.za.

Knowledge is power. 

Yours truly, Legal Hero 

www.legalhero.co.za

Tell me more about Customary Law

Many cultures and customs exist under our gorgeous South African sky. Long before the British and Roman Dutch colonized the Cape, many unwritten laws governed the lands and its people.

It is, however, important to note that it is not always an easy task to apply customary law in court. Customary law is a living and (mostly) unwritten law passed on from generation to generation.

Tell me more about customary law?

· ‘Customary law’ is defined as ‘the customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those peoples’ (The Recognition of Customary Marriages Act 120 of 1998).

· Customary law is binding in South Africa provided it is not ‘exercised in a manner inconsistent with any provision of the Bill of Rights’ (Section 31 of the Constitution of the Republic of South Africa, 1996).

· African customary law is not a singular code, but encompasses many different communities and cultures such as Xitsonga customary law, Zulu customary law, Xhosa customary law, etc.

· Most disputes are settled in family or clan meetings and do not reach the western courts. Our Constitution furthermore provides for customary courts and traditional leadership in section 211. Customary courts are mainly found within the rural areas and are headed by Chiefs and Headmen. Customary law, Ubuntu and the rules of the community, subject to our Constitution, applies in customary courts.

· Western courts are extremely cautious when applying and ruling customary law. This is mostly due to a lack of information/ understanding, their common law training and the binding impact the judgment may have. As pointed out by many judges, customary law should be allowed enough space to develop at its own pace. This is why most judges treat customary law cases before them on a piecemeal basis – in other words, their judgement only affects a certain issue, current parties or only a specific community.

· Many argue that the polygamous nature of customary law is unconstitutional in that customary law allows for a man to have more than one wife but a women may not marry more than one man. The Recognition of Customary Marriages Act tries to offer relief via section 6, noting a wife’s equal status and capacity ‘to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers she may have in customary law.’

· Furthermore, a husband needs to apply to court for approval before he can marry a second wife in terms of customary law. The previous wife/ wives need to be added to the court proceedings. In a sense the previous wives therefore need to give their permission. Also, this court order will determine the consequences of the marriage concerning the matrimonial property regime (assets and liabilities between the parties).

· Customary marriages need to be registered at the Department Of Home Affairs within three months. However, not registering the customary marriage does not make it invalid. Unless the husband marries a second wife in terms of customary law. If there is only one man and one woman, the parties may get married in terms of civil and customary law. Once married in terms of civil law, the man may not marry more than one wife (unless the parties divorce in terms of civil law).

· The requirements for a valid customary marriage include: consent, majority age and the rituals in terms of customary law (note that the paying of lobola is not a requirement for a valid customary marriage). The default matrimonial property regime for the first customary marriage is in community of property.

We wish you and your family a celebratory Heritage Day tomorrow. May we all learn to properly ‘unite in our diversity.’

Today is also a Jewish holiday, Yom Kippur. Yom Kippur is a day of fasting and repentance to renew the relationship with God. 

Legal Hero

www.legalhero.co.za

Muslim Marriage

“The new constitutional order is based on the recognition of our diversity and tolerance for other religious faiths.” - Daniels v Campbell and Others 2004 (5) SA 331 (CC) para 54.

Prior to our progressive and tolerant constitution, marriage was an option available only between a man and a woman in terms of the Marriage Act of 1961. Today same-sex couples may marry in terms of the Civil Union Act of 2006 and the Recognition of Customary Marriages Act of 1998 allows for African customary marriages.

South Africa has yet to enact legislation (law) that specifically caters for Muslim marriage.

Luckily there have been a few positive strides: 

• There are instances where our law does in fact recognize a Muslim marriage to a certain degree in order to offer protection. For example, only a ‘spouse’ can apply for maintenance from the deceased estate of their loved one after his/ her passing. To be considered a surviving ‘spouse’ in terms the Maintenance of Surviving Spouses Act, your marriage must, however, be legally recognized and therefore valid in South Africa. In the Constitutional Court case quoted above, the surviving wife (married in terms of Muslim law) was acknowledged as a ‘spouse' and in the court case of Hassan v Jacobs the surviving spouse of a polygamous Muslim marriage was also accepted as a surviving ‘spouse.' 

• The Muslim Marriages Bill is a draft law that was compiled back in 2003. This Bill has, however, been subject to much criticism. For example, it states that Muslim Marriages will automatically be OUT of community of property unless parties enter into an ante-nuptial agreement stating otherwise. In terms of South Africa’s other marriage laws mentioned above, a marriage will automatically be IN community of property. Being married IN community of property often offers protection to a spouse who gives up his/ her career and opportunities to stay at home and take care of the children. Should the couple divorce, parties married IN community of property will split everything fifty-fifty. 

• A few years ago Imams (Muslim clerics) were trained and appointed as authorized marriage officers, enabling a Muslim marriage to be solemnized by a registered Imam marriage officer in terms of the Marriage Act. Whilst the aforementioned is great news, many questions still remain unanswered pending the enactment of the Muslim Marriage Bill to deal specifically with many rights, responsibilities and consequences of a Muslim marriage. 

The point of having a specific act (law) such as the Marriage Act, Civil Union Act and the Recognition of Customary Marriages Act, is to offer case sensitive regulation and protection. 

Without a specific act, many questions that arise include the logistics and rights when it comes to the resolution of the marriage, for example. There are also a few other concerns regarding Islam law which have been cited as reasons why the enactment of the Bill is dragging its feet, including the man’s exclusive right to end the marriage unilaterally (talaq) and the custom that a woman may be wed by proxy.

“Everyone has the right to freedom of conscience, religion, thought, belief and opinion… This section does not prevent legislation recognizing… marriages concluded under any tradition, or a system of religious, personal or family law… Recognition… must be consistent with this section and the other provisions of the Constitution.” – Section 15(1), 15(a)(i) and 15(3)(b) of the Constitution of the Republic of South Africa, 1996

We wish you a wonderful and thought-provoking Heritage Month. South Africa's rich diversity of religious communities, cultures, languages and customs have a great deal to offer. As the preamble to our Constitution asks, may we all live ‘united in our diversity.’

www.legalhero.co.za

Not married but together for 30 years. What are my rights?

Good morning 

I really need your advice. I have been living with a man for 30 years. We are not married but I found out that he has been having an affair for 3 years. I am going to leave him but please will you tell me what my rights are. 

When we met in I had a house and a car. I did not use my Volkswagen so he used it. He used my car and a year later we sold it and bought him a new car. We also sold my house a few years later and used that to buy a bigger house. This was about twenty years ago. The new house and cars that followed after that are all in his name. I left my job many years ago to take care of my children and he supported us. My two daughters are not his. 

I do all the homework myself, cooking, cleaning, also do the garden, massage his shoulders every night, wash cars, varnishing of the house. My children have left the house but I don’t know what my next step should be. This is not easy. 

Dear Women’s Month Reader 

We are terribly sorry to learn of your predicament. This is a very tricky situation seeing that there is a big gap in South African law when it comes to long term relationships – where both parties contributed to the common household, but on paper only one party holds all the funds. 

Without a valid Marriage, Civil Union (similar to a Marriage) or Universal Agreement, your cohabitation with this man is not expressly recognised in law/ legislation. 

Your options here include: 

a) Prove an implied Universal/ Partnership Agreement in Court: 

- There is a Domestic Partnership Bill (this law has not been enacted/ become operational as yet) which may offer future protection to persons in a similar situation. So, the good news is that the legislators have realised that there is in fact a big shortcoming regarding long term cohabitants. Unfortunately, this new law is dragging its feet and implementation is unfortunately not around the corner.

- HOWEVER, there has been a handful of court cases where one of the cohabitants were able to prove an implied Universal Partnership. This is extremely difficult to prove, and most unfortunately fail. 

- To prove an implied Partnership Agreement, you need to prove that you both contributed to the household/ domestic partnership enterprise and that both parties aimed to make a profit and enjoy the benefits of a growing domestic partnership enterprise. Your lengthy time together will also play a role. Cooking, cleaning, massaging, etc. also count as household contributions.

- Just to highlight a specific case in terms of which the woman was successful in proving an implied Domestic Partnership (and in her case they were together for ten years less than you and your partner, i.e. 20 years): although both contributed to the same extent, as it was claimed, the woman walked away with only 30% of the partnership enterprise’s value.

- This could be a lengthy and tiresome court experience. We note that you are not a Legal Hero policyholder, but we might be able to recommend an excellent attorney in your area. 

b) Better yet, try to mediate the matter: 

- It could be that your partner is willing to settle out of court and award you a fair percentage of the common household considering all your contributions. This would spare you the expense of going to court and one could split the household depending on what is fair to both parties. An agreement could be drawn up for both of you to sign and abide by.

c) Claim monies of the past three years: 

- A Civil claim (your partner owing you money) prescribes in three years’ time. In other words, if you loaned your partner money/ assets/ etc., he would be able to raise the special defense of prescription in court regarding debts older than three years. At this point in time, you would only be able to claim back from your partner any and all expenses (that you are able to prove in writing) over the past three years.

- An acknowledgment and/ or an agreement to start paying the debts off (even if it’s only a small payment every month) will revive the debt!

- Just bear in mind that he who alleges, bears the burden of proof. You would also for example have to give an explanation as to why everything was registered in his name. 

What is a Domestic Partnership Agreement? It is a contract that sets out the legal implications of a committed and long term heterosexual or same sex couple who decide not to marry but wish to protect themselves against an unfortunate separation. More specifically, it sets out the assets and properties of each of the parties and what were to happen should the relationship turn sour. 

Should you and your partner decide to get back together, or you wish to cohabit with another person, please consider entering into a Domestic Partnership Agreement. It has your best legal interests at heart and can save you from all the admin and legal uncertainties you are currently facing. 

This is a lot to take in. Please consider your options carefully and do not hesitate to ask follow-up questions. 

Kind regards, 

Legal Hero

www.legalhero.co.za 

Child Maintenance - Seven Basic Points to Remember

Our social@legalhero.co.za mailbox has been flooded with child maintenance questions. We have compiled a short information piece to shed light on the many uncertainties surrounding this topic.

Please note that this piece is compiled from the viewpoint of our many female Women’s Month readers. It is, however, not uncommon for fathers to be the principal caretaker of the child/ children these days and to apply for child maintenance against the mother.

1. Both parents need to contribute financially based on what each parent earns and can afford. If the father earns more and has more resources available to him, he may be ordered to pay more than the mother. Even where the mother is in a good financial position and able to take care of the child on her own, this does not exempt the father. The court can order him to pay something based on what he can afford;

2. The court will consider the following before making an order: the best interests of the child is always paramount. They will also consider circumstances, the reasons provided by both parents during the maintenance hearing, both parents’ salary slips, last three months’ bank statements, slips proving previous contribution towards the child’s expenses, the needs of the child, if the child has become accustomed to a certain living standard before the parents’ split or not and furthermore ask each parent to complete an income and expenditure list;

3. Sometimes the father will dispute paternity and this will delay proceedings. The court or the father may send a referring letter requesting a paternity test. A DNA test costs in the region of R2 000 and it is usually the man (he who denies paternity) who pays. If the man refuses to undergo a paternity test (one does have the constitutional right to bodily integrity), the court must warn him of the impact his refusal might have on the court’s decision. There is a presumption in our law that he who had intercourse with the mother at a time at which the child could have been conceived, is considered to be the father of the child unless there is evidence proving otherwise;

4. If the father is unable to support his children, the mother can institute maintenance proceedings against his parents (the grandparents). The following must be shown in order to succeed: a) the grandparents are in a position to support the child and b) the child’s maintenance requirement;

5. In some instances, parents need to contribute financially even after the child turns 18. This is where the child remains dependent (full time student or unemployed). The maintenance application must be brought in the adult child’s personal capacity. In other words, it is he/ she who needs to complete the maintenance application forms – no longer the mother or father claiming maintenance from the other parent;

6. The father cannot discontinue maintenance payments due to the mother denying him visitation rights. Visitation (contact) and maintenance are two separate parental responsibilities and rights and the one does not necessarily influence the other;

7. How to apply…

a)      For a Maintenance Order where there is no court order in place: collect as much information as possible as referred to in point 2 above. Visit the Maintenance Division of the Magistrate’s Court and complete Form A [J101] - Application for Maintenance Order. You may ask the Clerk of the Court for assistance. Claiming maintenance is free and no legal representation is necessary. If you are a Legal Hero Policyholder, you may contact your hero for assistance with the application. Note that legal representation may be arranged in the instance where the other party is represented.

b)      When you want to change the current Maintenance Order you need to complete a Form I [J256] - Application for Variation/Setting Aside of an Order. Circumstances change. An example is when the child suddenly falls ill and it leads to greater expenses. In such an instance, the mother can apply for an increase in the maintenance amount paid by the father. Remember copies of doctors’ bills, etc. as proof.

c)       For the enforcement of an existing Maintenance Order you need to go back to the Maintenance Division together with the existing Maintenance Order and proof of non- payment. Complete Form K [J306] - Application for Enforcement of Maintenance or other Order. The court may then order a garnishee against the father’s salary or the execution (selling) of his assets.

Have a blessed weekend, 

Legal Hero 

www.legalhero.co.za 

Here's to strong women

“You strike a woman, you strike a rock!” 

– Women’s March (9 August 1956) resistance song. The march was in protest of the pass laws restricting black men from entering the cities. Women from all races joined forces and marched to the Pretoria Union Building to hand over a petition. 

Fifty nine years later there remains an uncomfortable amount of reasons for South African women to join forces and march once more. 

Every six hours a woman gets killed by her intimate partner. Women are raped, abused and humiliated on a daily basis. Many households are headed by women - women who continue to earn significantly less than their male counterparts. So yes, the struggle to emancipate women is real and far from over.

It is true that we have come a long way. In ancient times a woman was regarded as the property of her father or husband and was unable to enter into a contract without a man’s consent. Isn’t it heartbreaking to note that in some households, not much has changed? More than 50% of women surveyed by the World Health Organization in 2013 have been abused verbally or emotionally. Most women unfortunately suffer in silence, fearing retaliation or self-blame. 

If you or someone you know is a victim of stalking, physical, economical, verbal and/ or emotional abuse, we urge you to please follow or pass on these simple steps to obtain a protection order: click here. 

The government is trying to relieve woman and child abuse by implementing Family Violence, Child Protection and Sexual Offenses units countrywide. On the 22nd of July 2015 the Minister of Justice and Correctional Services also officially opened the Schweizer Reneke Sexual Offences Court in the North West Province– a court with specially trained officials and equipment that will assist to reduce any chance of secondary trauma for victims of sexual violence. These are all strides in the right direction, however, there is a potential force much stronger than Parliament: all women joining forces. 

It is easy to sit back and blame decades of gender discrimination, especially as the damage caused is unacceptable and has bred mindsets that are not compatible with equal opportunities and respect. As a woman I believe it is time for us all to take a hard look in the mirror. Are you living a fulfilled life? Is this who you dreamed of becoming as a little girl? Are you spending more time belittling women than actively building each other up? Is that petty fight with that other struggling woman really worth it? 

Women form more than half of this beautiful country’s population. Imagine what we can accomplish together.

In celebration of Women’s Month, Legal Hero will upload a few Woman Law 101 notes to try ensure that no legal obstacle is stopping you from reaching your full potential. Please mail social@legalhero.co.za should you have any specific topics or questions you would like one of our legal wonder women to address.

“Here's to strong women. May we know them, may we be them, may we raise them.” - Unknown.

Not All Heroes Wear Capes

Happy Friday! Our days are even happier with this brave man keeping us safe. Constable Siboniso Tembe exhibited true bravery and dedication in a recent investigation into the murder of an elderly couple. He helped ensure the conviction of three men. It is truer than ever that not all heroes wear capes! 

In the photo below (from an article in Highway Mail Newspaper, KZN), Constable Tembe (centre right) receives a LH Certificate of Excellence Award with LH's own Chris Madonda looking on (second from the right).

Two weeks ago, Warrant Officer WT Hlela was also awarded with a Certificate of Excellence. His unflagging commitment helped ensure the conviction of two rapists – they were sentenced to 12 x life imprisonment!

We salute the brave men and women in SAPS who keep us safe. 

Have a great weekend,

Legal Hero

www.legalhero.co.za

Emolument Attachment Orders in South Africa and Yesterday's Western Cape High Court Ruling

South Africans are drowning in debt! According to the National Credit regulator, debt counsellors have assisted over indebted consumers with repayment plans worth up to R18 BILLION in total. Statistics show that by 2013, about 240 034 government employees and about 120 000 private sector employees had emolument attachment orders against their salaries.

During the month of July 2015, in celebration of Mandela Day, Legal Hero and Cape Debt Clinic, one of our trusted partners, are here to answer your money/ debt/ debt review questions free of charge. Please submit your question/s to capedebtclinic@legalhero.co.za. Policyholders may contact their hero directly.

WHAT IS AN EMOLUMENT ATTACHMENT ORDER (EAO)? 

Often incorrectly referred to as a garnishee, an EAO orders the employer of the debtor to religiously deduct money directly from the debtor’s salary each month in order to ensure prompt payment to the credit provider. 

HOW DOES IT HAPPEN? 

• When the consumer/ debtor breaches the terms and conditions of the loan agreement by failing to pay in terms thereof, 
• the creditor can take action by sending letters of demand, summons, obtaining a court order against the debtor, and then lastly using the court order to enforce payment by applying for an EAO or warrant of execution...

OR 

• The creditor can ask the debtor to sign a consent to judgment form, in terms of which the debtor consents to the judgment debt and agrees to the EAO against his/ her salary; 
• Section 58 of the Magistrate’s Court Act 32 of 1994 deals with consent to judgment applications; 
• In the year 2010 it was decided by the court in African Bank Limited v Additional Magistrate Myambo that section 58 of the Magistrate’s Court Act remains unaffected by the National Credit Act (which offers protection to consumers). The court ruled that credit providers may continue to make use of consent to judgment applications in terms of section 58; 
• Note that it is unlawful for the creditor to request a signed consent to judgment form prior to granting you a loan/ you falling into arrears. Therefore, always remember to check the dates. 

IMPLICATIONS OF YESTERDAY’S WESTERN CAPE HIGH COURT RULING BY JUDGE SIRAJ DESAI (08/07/2015): 

• Certain sections of the Magistrate’s Court Act regarding emolument attachment orders have been declared unconstitutional. We applaud the University of Stellenbosch’s Legal Aid Clinic who brought this application on behalf of 15 financially distressed low-income consumers; 
• However, remember that Constitutional invalidity needs to be confirmed by the Constitutional Court; 
• Should the Constitutional Court confirm this order: 

a) Credit providers may no longer obtain an EAO against the debtor’s salary by way of the debtor merely signing a consent to judgment form! 

b) Judicial oversight will be required. In other words, the Magistrate needs to consider the financial implications of the garnishee against the debtor first;

c) Judge Desai furthermore pointed out that consumers/ debtors may not be coerced into agreeing to a Magistrate’s Court in the jurisdiction/ area outside of where the consumer lives or works. This is often done as it is convenient for a credit provider to rather make use of the Magistrate's Court in its own area.

Please remember that you may send any further legal questions on the above/ debt/ debt review to capedebtclinic@legalhero.co.za during the month of July 2015. 

Cape Debt Clinic represents a network of registered Debt Counsellors and trusted partners, able to provide over-indebted consumers with debt solutions uniquely tailored to your personal circumstances and all the supporting services you need, in complete confidence. www.capedebtclinic.co.za. 021 828 2658.

Intestate Succession 101

Wishing you a fantastic Friday and weekend, 

Legal Hero 

www.legalhero.co.za 

Wills: Five Frequently Asked Questions

This weekend might be a great time to get your ducks in a row and write a Will!

DIY Wills are, however, dangerous and can be declared invalid. If you are a Legal Hero policyholder, rather contact your hero and ask for professional assistance.

5 FAQ's answered: 

1. What are the basic formalities?

a) Write/ type (and print out) your Will and sign at the end of the document;

b) Initial every other page if your Will is longer than a page;

c) Confirm your signature in the presence of two competent witnesses not younger than 14 years;

d) Ask your witnesses to sign the Will at the end of the document in the presence of each other and you (the testator);

e) If you are unable to sign the Will, a mark (such as an “x”) would suffice if the Will is executed (signed and witnessed) in the presence of a Commissioner of Oaths who will then attend to certify the Will as soon as possible.


2. Could a Will without a date be declared invalid?

A Will without a date is not necessarily invalid, but a date would make it easier to interpret your wishes should there be more than one will. Note: a new will does not necessarily revoke our previous Will/s. Wills are read in conjunction with one another as far as possible, unless you explicitly say ‘this Will revokes all previous Wills…’


3. Is it necessary for my two witnesses to actually read my Will?

No, it is not a requirement. The witnesses merely sign to advise that it is in fact your signature on the document/ they saw you sign the document.


4. Can my parents or spouse witness my Will?

Yes, BUT if they do, they will be unable to inherit in terms of the will. A beneficiary to your will may NOT sign as witness. If they do, they will be disqualified from inheriting. You should, however, inform your parents/ spouse/ attorney/ trusted party of your Will and where it is kept. He/she would need to supply the Will when notifying the Master of the High Court of your passing (the deceased estate must be reported within 14 days).


5. Explain to me why I need to appoint an executor in my Will?

The Executor is responsible for administering the estate. Duties include paying creditors of the estate (your debts), receiving claims (if you had debtors), pay the heirs to the estate, etc. whilst in constant communication with the Master of the High Court. If you do not nominate an Executor, the Master of the High Court may appoint an executor. An Executor may also not sign the Will as a witness. If so, he/ she may not act as the appointed Executor. An Executor may, however, inherit in terms of the Will.



Note: a will is presumed to be valid until the invalidity thereof has been proven on a balance of probabilities by the person alleging same. It is strongly advised that you seek professional assistance.

Deceased Estate Administration 101

Hope is being able to see that there is light despite all of the darkness – Desmond Tutu. 

The passing of a loved one is never easy. To make matters even worse, there is a certain amount of legal work that comes with the territory. 

The deceased estate administration process in a nutshell:

www.legalhero.co.za 

Notes on Euthanasia

In Stransham-Ford v Minister of Justice And Correctional Services and Others (4 May 2015) the High Court gave a terminally ill patient permission to be assisted in his suicide by a doctor who is willing to  do so, 'either by administration of a lethal agent or by providing the Applicant with the necessary lethal agent to administer himself.' 

A few days ago, however, leave was granted to appeal this ruling in order to develop South Africa's common law. 

101 Notes: 

There is currently no legislation/law enacted to regulate euthanasia and as pointed out by a senior State Advocate representing the National Director of Public Prosecution in the aforementioned case, to assist someone commit suicide is a crime. 

There are different variations of euthanasia: 

Doctor withholds treatment from a patient. This is a passive approach. A patient may refuse medication/ treatment in terms of one’s Constitutional right to bodily integrity. 

Where a patient is mentally capable and wants to die, the doctor may NOT pursue any treatment. The crime for doing so is assault. 

Where the patient is mentally incompetent, only a medical professional will be able to determine what would be in the best interests of the patient. Unless the patient has a living will advising that he/she does not consent to artificial life support. A living will is signed when the patient is mentally capable and only becomes relevant when the patient is mentally incompetent/ in a permanent vegetative state. At the moment a living will cannot order a medical practitioner to assist with the patient’s suicide. 

Mercy killing. This is when the doctor actively assists the dying. Regardless of whether or not there is a kind motive: mercy killing = murder. 

There is currently a bill (draft law) concerning assisted suicide. The draft law suggests three approaches: a) Leave the matter unregulated and allow the courts a discretion with regards to sentencing, etc.; b) The doctor and patient decide together; c) Set up an Ethics Committee to decide whether or not assisted suicide may be pursued. 

Note that a High Court does not have the power to make new laws and that decisions of the Supreme Court of Appeal are binding on all lower courts. An order of constitutional invalidity must, however, proceed to the Constitutional Court for confirmation. The Constitutional Court will then typically guide and order Parliament to cater for the specific instance by enacting legislation. Power is divided into three branches: legislative/ law-making (Parliament), executive (President and his Cabinet) and judicial (Courts who apply and review laws). To avoid the abuse of power, each branch functions independently with different functions.

Judge Fabricius in the Stransham case on the sacredness of life, para 14:

"People die of AIDS, from malaria by the hundreds of thousands, from hunger, from malnutrition and impure water and insufficient medical facilities. The State says that it cannot afford to fulfil all socio-economic demands, but it assumes the power to tell an educated individual of sound mind who is gravely ill and about to die, that he must suffer the indignity of the severe pain, and is not allowed to die in a dignified, quiet manner with the assistance of a medical practitioner.”

www.legalhero.co.za 

Seven Interesting Truths about Polygraph Tests

1. There is currently no law specifically regulating polygraph (lie detecting) tests in South Africa!


2. Some employers make use of polygraphs to test the honesty of employees after company property has gone missing or after alleged misconduct. A few employers even request pre-interview polygraph testing!


3. Polygraph tests involve electronic sensors placed over the chest, abdominal and finger to measure respiratory, sweat gland, cardiovascular and blood pressure activity whilst the examinee responds to certain questions.


4. Remember that the outcome of a polygraph test may NOT be the sole reason for a dismissal (reference: Sosibo & Others). It may therefore only count as an aggravating factor to support other evidence against the employee.


5. A person who performs a polygraph test, called a polygraphist, can testify in court as an expert witness to support an employer’s claim against an employee. A polygraph test will cost the employer about R500.00 – R2 000.00+, excluding traveling fees.


6. Furthermore, for the outcome of a polygraph test to be permissible in court, the employer has to comply with a few strict rules:

a) The employer needs the employee’s written consent;

b) The employee’s refusal to undergo a polygraph test does NOT amount to an admission of guilt.
c) The polygraph questions may not be not be vague or misleading;
d) The questions should be explained to the employee prior to the test;
e) The employee has the right to an interpreter during proceedings;
f) The employee has the right to have a colleague/ another person present;

g) The outcome of the polygraph test is confidential and may only be released to the examinee or an authorized person.


7. How accurate is a polygraph test? According to a very recent study (2015) conducted by the American Polygraph Association, a polygraph test is about 86% accurate! There are, however, many who disagree with the admissibility of this statistic and who argue that polygraph testing is subject to far too many variables.


Wishing you a fantastic day,

Legal Hero 

www.legalhero.co.za 

How do I claim unpaid salaries from my employer?

Question received via freeadvice@legalhero.co.za: 

Hi, Im working for a construction company as a manager.
The company owes me december,january, march and april salaries.
I lost because of not paying my debts. Can you please advise me on what steps to take so that i dnt lose the money im being owed and must the company pay me interest because of late payment?

Dear writer

We are awfully sorry to learn of your misfortune and are happy to offer some basic advice on what can be done to secure your salary and receive your dues.

1)      Department of Labour and not the CCMA/ Bargaining Counsel:

Many people make the mistake of taking the matter up with the CCMA or their Bargaining Counsel. However, as a general rule, all money related matters such as unpaid salary, overtime pay, leave pay, etc. are referred to the Department of Labour.

This is your best option as the Department of Labour offers assistance free of charge. The aforesaid is, however, not an option available to you if you are in senior management and/ or earn more than R205 443.30 per year. This monetary threshold is revised from time to time by the Minister of Labour and published in the Government Gazette.

Should you qualify, the Department of Labour will appoint an Inspector to investigate your complaint of nonpayment, contact your employer and possibly issue your employer with a compliance order ordering payment plus interest by a certain date. In terms of section 70 of the Basic Conditions of Employment Act, you need to inform the Department of Labour of your unpaid salary/ salaries within 12 months.

2)      Going to Court:

Employees can also claim an unpaid salary via the Small Claims Court provided the outstanding salary does not exceed R15 000. The Small Claims Court is free of charge, no legal representation is allowed and the authority of its order is equal to that of a Magistrate’s Court. Visit the Magistrate’s Court in your area and speak to the Clerk regarding the Small Claims Court and a Section 29 Letter of Demand, as each Magistrate’s Court also acts as a Small Claims Court. Going to Court is also the route to take if you were an independent contractor (and not an employee).

Should the monies plus interest owed to you be in excess of R15 000, the matter must be heard by the Magistrate’s Court. You will, however, need a lawyer to assist you with the relevant court documents and procedures.

Your lawyer could also decide to take the matter to the Labour Court. Your employer will receive notice of this application and may decide to oppose the matter or not. Once the Labour Court is convinced of your case, it can issue an order instructing your employer to pay all outstanding monies to you before a certain deadline.

For some the battle does not end here. Should your employer fail to pay in terms of the court order, one needs to go back to court! What often happens next is that the Sheriff will come knocking to draw up a list of all the employer’s assets to be sold in execution in order to cover your unpaid monies.

3)      Interest:

In terms of section 75 of the Basic Conditions of Employment Act, an employer must pay interest on any amount due in terms of the Prescribed Rate of Interest Act. The aforesaid act has recently been amended. Prior to 1 August 2014 the interest rate was 15.5% per year but this has now been changed to 9%.

Remember that an employer only has a grace period of 7 days to pay employees in terms of section 32(3) of the Basic Conditions of Employment Act. Once your salary is more than 7 days late, we advise employees to take the matter up internally by filing a grievance and discussing the matter with senior management.

Should the aforesaid fail, you next step would be to either file a complaint of nonpayment at the Department of Labour should you qualify, alternatively, contact a private attorney/ your legal cost insurance company to get the ball rolling with regards to letters of demand in order to pursue a Civil case.

Lastly, but very importantly, remember that a Civil claim (money claim) prescribes/ expires/ becomes invalid within 3 years since payment/ acknowledgement of the debt provided no legal action was instituted. This means that your unpaid December 2014 salary will prescribe in December 2017. After December 2017 your employer can raise the defense of prescription and you will lose the December money owed to you! We therefore advise that you take action as soon as possible.

We hope this helps and sincerely wish you all the best with this endeavour.

Kind regards,

Legal Hero

www.legalhero.co.za

Exemption from Payment of School Fees

Note: a school can take legal action against both the custodian (person with whom the child resides) as well as the non-custodian parent. The school can, however, only take legal action against the parent after the exemption criteria has been applied and denied. Remember that the parent may appeal to the Department of Education. 

Wishing you a great day, 

Legal Hero

www.legalhero.co.za 

PS: Click here for the link to the various provincial divisions of the Department of Education.