Search Warrants

Question received

“The police came to my house and went through my things and looked under the carpet yesterday. I have nothing to hide so I let them come in but explain please how a police does get the right to come into my house? They found nothing and walked away.”

Reply

In order to fight and/ or prevent crime, South African Police Officers often need to invade our privacy. It is true that our Constitution enshrines our right to privacy (section 14) and human dignity (section 10).

However, we must remember that our Constitutional rights are not absolute in that it can be limited (section 36 of the Constitution) if, amongst a few other factors, the purpose of the limitation is important, reasonable and justifiable in an open and democratic society.

South African Police Officers have a duty to try and protect us. According to section 205 of our Constitution:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

The abovementioned goals of the Police would be difficult without the right to search for items that form part of, or are suspected of forming part of, a crime. Seeing as the penalty for committed crimes relies on the decision of a court based on evidence available, it is important that the Police conduct searches if they have reasonable grounds to believe that evidence may be hidden in a house. This is to ensure a safer community and life for all in our beautiful country.

However, the right to the State/ Police to search our homes is also not absolute. This right is regulated and limited in terms of the Criminal Procedure Act. What does the Criminal Procedure Act have to say about a Police Officer searching your home?

· The Police Officer should show you his/her search warrant that was issued by a magistrate or justice of peace;

· A magistrate, justice of peace or presiding officer at criminal proceedings will only grant a search warrant if there are reasonable grounds for believing that the item (connected to a suspected crime) is at a certain home;

· This search warrant allows a Police Officer to search a person, the home of a person and to take the item in question from the person;

· Police officers must search the person and / or the person’s home during the day and not at night, unless the search warrant explicitly gives the officer the right to search at night.


Only in a few circumstances may an officer search your house WITHOUT a warrant:

a) If you consent to the search and the officer removing the item;

b) If the officer has reasonable grounds to believe that a search warrant will be issued;

c) Or if the officer has reasonable grounds to believe that first obtaining a search warrant would cause a delay & lead to the item’s disappearance.

In your case you gave the Police Officers consent to enter your home, it was therefore not necessary for the Police to first obtain a search warrant. The Police must show you a search warrant if they have one but remember that the Police may also enter without one if it is urgent and in the interests of justice to not delay the search, as explained above.

When shown a search warrant, please take care to read it. The warrant may not be too general or vague but rather specific in what its aim is. This was repeatedly said in the case of Powel v Waja, which also highlighted the fact that one may challenge the validity of a search and/ or a search warrant in court. Remember that you can question the search by contacting the relevant Police Station and asking to speak to the Station Commander. It is therefore important that you request the full name and rank of the Police Officer/s searching your home.

We hope this clears matters up a bit.


Wishing you a great day,

Legal Hero.

www.legalhero.co.za 

Eviction

Question received:

“Good Day. About a year or so ago I rented a house from an agent when I moved the
agent said he'll just transfer my deposit to the other house that I
was about the rent from him. So I moved into the house the rent was
R4000 I paid him R5000 plus he had my deposit of R3800.
I moved in End of January which ment my contract would end the next
year end of January. In October that year I was in arrears for one
month which I paid in November and beginning of December, I told the
agent I am going to move end of January an he said no I must move end
of Feb. One day in Jan I went to my moms house when I got back at night there
was a big chain around the gate, they said I owed them R4000.00 I than
argued but end up paying it my furnitures was still in the house when
I went back to get my furniture the agent said it is safe. the next
day the agent called me and said the owners of the house sold all my
furniture which I still owed. I did go to court but never carried out the situation and now I am
ready and want to know what I should or can do or if its to late to do
anything now since its about a year ago”

Reply:

The good news is that it is not too late to take action and hold the lessor (person who rented the house to you) accountable for withholding your deposit, claiming additional rent from you and for selling your furniture without a court order!

According to the Prescription Act, your specific monetary claims and interest against the lessor only prescribe (expire/ become invalid should the lessor defend the case by pleading the defence of prescription) after THREE years.

We suggest that you contact the Rental Housing Tribunal in your area. The Rental Housing Tribunal is a free service and is in a position to arbitrate the dispute and make a binding order against the lessor. According to section 13 of the Rental Tribunal Act, 'a ruling by the Tribunal is deemed to be an order of the Magistrate's Court.' You furthermore do not need legal assistance or representation during the hearing at the Rental Housing Tribunal.

However, it is you who would have to prove your claim against the lessor by way of receipts/ bank statements, any correspondence between yourself and the lessor (lease agreement, emails, text messages, letters), affidavits, etc.

Assuming that you rented the house in the Western Cape, the following two forms should be completed and submitted to the Rental Housing Tribunal:

http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fa-failure-to-refund-deposit.pdf

http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fk-unlawful-seizure-of-possessions.pdf

Please note that as of April 2011, in terms of Consumer Protection Act, a lessor is obliged to place a deposit in an interest-bearing account. This means that once the lease period ends, the lessor is to pay over the deposit PLUS interest that accumulated during the lease period (minus the cost of damages you caused to the property/ any arrear monies).

Should you not be situated in the Western Cape, simply Google search 'Rental Housing Tribunal South Africa' in order to locate the tribunal closest to you and its applicable complaint forms.
It was furthermore unlawful of the lessor to chain your gate. In terms of section 26 (3) of the Constitution of the Republic of South Africa, 1996, a lessor is not allowed to evict/ lock you out without first obtaining 'n court order.

For a lawful eviction, a lessor has to apply to court in terms of section 4 of the Prevention of Illegal Eviction Act (PIE). Before you can evict someone in terms of PIE, that person needs to be an unlawful occupier. This means that the person residing on the property is doing so unlawfully (without consent/ a lease agreement/ the lease period has come to an end). This is a lengthy and costly experience:

Step 1: The owner sends the occupant a written notice asking him/her to vacate the premises within a reasonable time (a minimum of 30 days);

Step 2: Should the occupants not vacate the premises within that time period, step two would be to notify the occupant in writing that the owner intends to apply for an eviction order. This notice must be served 14 days prior to the court date;

Step 3: Once in court, section 4(6) and (7) of PIE set out the factors taken into account by the presiding officer before deciding whether or not to grant the eviction order:

             “(6)       If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

             (7)              If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

For future reference, please note that the Rental Housing Tribunal can furthermore provide IMMEDIATE assistance should a landlord change the building's locks without giving you the new keys:

http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fh-unlawful-eviction-or-unlawful-lockout.pdf

As for selling your furniture, please note that the lessor does have something called a landlord’s hypothec in his/her favour meaning that your furniture and other movable property may be sold to cover your arrear rent.  However, this hypothec may not be enforced without first giving you written notice of the arrear rent and allowing time for repayment before applying to court to enforce this right. Next the sheriff will get involved and only auction the movable property to the value of the arrear rent after advertising same.

We hope this helps and we wish you a fantastic 2015.

Legal Hero

Enforcement or cancellation of a contract

Question received

“Can I claim back my money? I ordered hay for my horses in November 2013 after seeing an advertisement on the internet. The man was very polite over the phone and convinced me to pay the full R3 000 in advance. He explained that the hay was fresh and the only reason for selling was to clear his storeroom. When the man came to deliver the hay I realised that the hay was OLD, MOULDY AND STALE - I have photos to prove it - and refused to accept the goods. He left with the bad hay and promised to be back at a later stage with better quality. I am still waiting!! He no longer answers my calls but I’ve managed to get his address. Should I approach him?”

Reply:

You and this man (let’s call him Mr X) entered into a verbal contract over the phone the moment the two of you agreed that the hay would be delivered in exchange for R3 000 – to be paid up front.

It is an underlying requirement that the parties to a contract act in good faith and fair dealing. As you have possibly learned, this is sadly not always the case.

The truth is that Mr X has been in breach of contract for more than a year. The type of breach here is called positive malperformance.

-          Positive malperformance happens where the supplier delivers the ordered goods on time but where the quality of the goods is improper/ incomplete/ defective;

-          The receiving party subsequently has a right to reject the improper/ incomplete or defective goods;

-          What generally happens next is that the receiving (innocent) party would demand:

a)      That the supplier replace defective goods with proper/ complete goods in an acceptable order;  OR

b)      A cancellation if the defect/ breach is material/ very serious. 

Seeing as stale/ mouldy hay can cause your horses infection and/ or hay induced-colic, the defect appears to be material in this instance! 

Van der Merwe et al (Contract, General Principles 1 ed 1993, at 255) describes a very serious breach as follows (also quoted in the case of Singh v McCarthy Motors):

“The test for seriousness has been expressed in a variety of ways, for example that the breach must go to the root of the contract, must affect a vital part or term of the contract, or must relate to a material or essential  term of the contract, or  that there must have been a substantial failure to perform.   It has been said that the question whether a breach would justify cancellation is a matter of judicial discretion.   In more general terms the test can be expressed as whether the breach is so serious that it would not be reasonable to expect that the creditor should retain the defective performance and be satisfied with damages to supplement the malperformance.”

Can you claim back your money?

Firstly, well done on tracking down Mr X’s address! This is invaluable, not necessarily for approaching Mr X (in fact, we advise against it) but for delivering the relevant legal documents to demand fresh hay or cancellation (repayment of your R3 000).

The good news is that you are able to pursue the matter via the Small Claims Court as your claim is less than R15 000. The aforementioned court is free of charge and does not allow for legal representation. Proceedings are informal and you will be able to rely on text messages and informal means of communication.

The first step is to put your claim in writing by sending Mr X a Small Claims Court section 29 letter of demand in terms of which you request fresh hay as agreed upon within 14 days, failing which you will cancel the contract and demand repayment. If you are a Legal Hero policyholder, please contact us and open a new file for assistance as soon as possible. 

It is very important to note that a civil claim prescribes (becomes invalid) after 3 years since last date of payment/ acknowledgement of the debt provided no legal action has been instituted during that time. This means that your civil claim against Mr X will prescribe in November 2016.  After November 2016, Mr X will be able to raise the special defence of prescription in court.

Lastly, based on the information provided to us, it appears that this sale was a once-off. Should Mr X, however, sell hay on a regular basis during the ordinary course of business, Mr X would be bound by the rules of the Consumer Protection Act (as a supplier). In terms of the Consumer Protection Act, a consumer may request repayment, a repair or replacement of defective goods. One could also lodge a consumer complaint via complaints@thencc.org.za.

Wishing you a fantastic day,

Legal Hero.

www.legalhero.co.za 

Personal information

Question received: “Hi please tell me, can a store where you buy on account tell other people about your debts, private information and that you dont pay?”

Reply

Your credit information is personal and protected. It is true that credit providers have an obligation to assess your repayment capability before granting credit to avoid reckless lending; however, you have a right to privacy. This is why potential credit providers/ employers ask you to complete and sign a credit check consent form. Without this signed form potential creditors have no right to access your credit record!

Regulation 18 of the National Credit Act specifically governs the confidentiality, maintenance and retention of consumer credit information:

“The prescribed purposes, other than for purposes contemplated in the Act, for which a report may be issued in terms of section 70(2)(g), are:

(a) an investigation into fraud, corruption or theft, provided that the South African Police Service or any other statutory enforcement agency conducts such an investigation;

(b) fraud detection and fraud prevention services;

(c) considering a candidate for employment in a position that requires trust and

honesty and entails the handling of cash or finances;

(d) an assessment of the debtors book of a business for the purposes of:

(i) the sale of the business or debtors book of that business; or

(ii) any other transaction that is dependant upon determining the value of the

business or debtors book of that business;

(e) seting a limit of service provision in respect of any continuous service;

(f) assessing an application for insurance;

(g) verifying educational qualifications and employment;

(h) obtaining consumer information to distribute unclaimed funds, including pension

funds and insurance claims;

(i) tracing of a consumer by a credit provider in respect of a credit agreement entered

into between the consumer and the credit provider;

(j) developing of a credit scoring system by a credit provider or credit bureau;

(5) Should a report be required for a purpose set out in sub­regulation (4)(c) or (e) to (g), the

consent of the consumer must be obtained prior to the report being requested.”


When you fail to pay your monthly instalments as contractually agreed on, this may reflect on your credit record as adverse information (slow paying/ not contactable/ missed payment, etc). Access to this information is however limited, as set out above.

According to section 68(1) of the National Credit Act, “Any person who, in terms of this Act, receives, compiles, retains or reports any confidential information pertaining to a consumer or prospective consumer must protect the confidentiality of that information…”

It would therefore be very unprofessional, unethical and unlawful for a shop to disclose your debts with others and we would suggest you contact Legal Hero immediately should you be a policyholder or lodge a complaint via email: complaints@ncr.org.za.

The Protection of Private Information Act (POPI) was signed by the President in November 2013 but is not yet effective/ operational. This piece of legislation will bring about quite a bit of change and strict guidelines regarding the gathering, securing and appropriate use of personal information. Offenders could face jail time or fines of up to R10 million! So how is ‘personal information’ defined in the act?

‘‘personal information’’ means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person,including, but not limited to—

(a) information relating to the race, gender, sex, pregnancy, marital status,

national, ethnic or social origin, colour, sexual orientation, age, physical or

mental health, well-being, disability, religion, conscience, belief, culture,

language and birth of the person;

(b) information relating to the education or the medical, financial, criminal or

employment history of the person;

(c) any identifying number, symbol, e-mail address, physical address, telephone

number or other particular assignment to the person;

(d) the blood type or any other biometric information of the person;

(e) the personal opinions, views or preferences of the person;

60(f) correspondence sent by the person that is implicitly or explicitly of a private

or confidential nature or further correspondence that would reveal the contents

of the original correspondence;

(g) the views or opinions of another individual about the person; and

(h) the name of the person if it appears with other personal information relating to

the person or if the disclosure of the name itself would reveal information

about the person”

Telling others about the fact that you do not pay your debts timeously could possibly also impact your reputation. Please read our previous blog entries on reputation/ defamation.

Struggling with a legal question of your own? Email freeadvice@legalhero.co.za this week and we will try our utmost best to give you some clarity. It's our way of giving back and saying thank you.

Best wishes,

Legal Hero.

www.legalhero.co.za

Victimization in the workplace

Notes:

While you have 90 days to refer an unfair labour practice to the CCMA, you only have 30 DAYS to refer an unfair dismissal.

Chapter two of the Employment Equity Act also sets out a few practices that could amount to victimization (preventing employees from joining trade unions or preventing employees from engaging in union activities, prejudicing employees due to a legitimate disclosure, bribing employees not to exercise his/her rights in terms of the Labour Relations Act, etc.).

Have a look at section 5, 185 and 186(2) of the Labour Relations Act (unfair labour practices that could amount to victimization).

Wishing you an empowering Tuesday,

Legal Hero

wwww.legalhero.co.za  
0861 22 99 22
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