How do I clear listings from my credit report?

Here at Head Office we all do some credit ‘spring cleaning’ right after the annual budget speech. Everybody requests a copy of his/ her credit record from TransUnion/ Experian and then scrutinizes the document in order to avoid any nasty surprises. 

Did you know that potential creditors are obliged to check your credit record for any listings prior to approving your loan? A listing could then lead to the rejection of your application.

Ranked from least to most serious, there is a chance that you might spot one or more of the following listings on your credit record: payment profile information, adverse information, judgments and notices.

Payment Profile Information:

What is it? This listing changes every month, dependent on whether or not you paid your clothing/ other accounts. When you skip a payment, this gets listed on your credit record.

How do I remove it? There is nothing you can do to remove this type of listing.

Will it affect my loan application? It is definitely something your potential creditor will take into account when considering your application. However, in most cases you will be granted credit.

Adverse Information:

What is it? After skipping a few of the abovementioned payments or not paying on time, your creditor will notify the credit bureau and have you tagged as a ‘slow payer,’ ‘default,’ ‘write off,’ etc.

How do I remove it? The only way to remove this type of listing is to write to your creditor with reasons as to why your account was in arrears AND make payment to get your account up to date. Examples of reasons include hospitalization or retrenchment – please remember to attach proof of payment as well as proof of your reason. It is then up to your creditor to decide whether or not it will write to the bureau to remove the listing.

Will it affect my loan application? Although you will be granted credit in most cases, it may come at a higher cost to you.

Impact of the Removal of Adverse Consumer Information and Information Relating to Paid Up Judgements Regulations, 2014? Some data on your credit record (adverse information reflecting on 1 April 2014) was ordered to be removed. This does not mean that you no longer owe the outstanding amounts to your creditor. What is does mean is that future creditors will no longer see old adverse information data as available on 1 April 2014 when considering your credit application.

Judgements:

What is it? After skipping many payments, ignoring calls from your creditor, receiving letters of demand, summonses, your creditor will apply to court to confirm the amount owing plus interest, legal fees, etc.

Whereas a debt prescribes (expires) within three years since the date of your last payment or acknowledgement of the debt, a court order confirming a debt only prescribes after thirty years. This means your creditor has thirty years to enforce the debt.

For more information on judgements and emolument attachment orders (garnishees), please visit this link: http://www.legalherolearn.blogspot.co.za/2015/07/emolument-attachment-orders-in-south.html

How do I remove it? Previously you had to:

i. Pay the debt in full;

ii. Obtain a confirmation letter from the creditor;

iii. Apply to the same court for the rescission of the judgement. This was a costly exercise;

iv. Obtain a copy of the court order confirming the rescission;

v. Send the court order confirming the rescission to the credit bureau and request the judgement’s removal from your credit record.

Effective 1 June 2014, the creditor has an obligation to send confirmation of a paid up debt to the credit bureaus within 7 days. The bureaus (Transunion/ Experian) will then remove the listing within 7 days. You may also contact the bureau and submit the confirmation letter to arrange the removal if you wish to do so.

Will it affect my loan application? Yes. Having a judgment against your name will most likely lead to the rejection of your credit application.

Notices:

What is it? This is the most serious type and happens after you have been sequestrated or placed under administration.

How is it removed? You need to apply to court.

Will it affect my loan application? Yes. Creditors will not grant you credit and might even be held liable for acting recklessly should they do so.



We hope you found this post helpful. If you are a Legal Hero Policyholder, kindly contact our offices for assistance with your credit record.

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

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. 

Five Unexpected Hangouts of the Law at Your Family Home

Remember to set the table for one extra (sometimes uninvited) guest that hangs out at your family home. Yes, it is important to have a basic understanding of the law, as it is with us wherever we go. Let’s have a look at a few Family, Civil, Criminal and Labour Law examples at home to put things into perspective.

1.       The irritating neighbours. Your neighbour has the right to the use and enjoyment of his/ her property. This, however, does not mean he can start a band and cause widespread upset by his 2am practise sessions. Neighbour law is based on reasonableness and tries to find a balance between opposing property rights. Your neighbour may therefore only use and enjoy his property to the extent that it does not infringe YOUR right to use and enjoy YOUR property. Remember that one cannot be oversensitive and all factors are taken into account when you apply for an interdict against your neighbour. An interdict can force someone to do something, prohibit someone from doing something or force someone to continue doing something.

2.       That new faulty washing machine. The Consumer Protection Act awards goods an implied warranty of 6 months. According to section 56 of the Act, a Consumer may ask for a repair/ replacement or refund at no cost to the consumer should a defect occur within the first 6 months. Where to complain: contact your hero or contact complaints@thencc.org.za.

3.       School fees. Previously schools could only sue the custodian parent (parent with whom the child stays) for arrear school fees. Only after the Supreme Court of Appeal ruling in Fish Hoek Primary School v GW 2010, can the other biological parent be held liable for arrear school fees. How to claim an increase in child maintenance: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms. 

4.       Aging parents. It is true that an aging parent can claim maintenance from his/ her independent children. The parents would have to prove their expenses, that they are unable to support themselves and that the child is in a position to support his/her parent. How to claim: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms.

5.       Domestic workers. A Domestic Worker MUST be provided with an employment contract and a pay slip. The employer must safe keep pay slips for THREE years. Impermissible deductions from your Domestic Worker’s pay include damages caused by ironing, meals provided during working time and crockery/ electrical appliances breakages. Noncompliance: the Department of Labour can send an Investigating Officer to your home and you may receive a fine. The matter could proceed to the Labour Court.

If you have any questions on one of the above, please send an email to freeadvice@legalhero.co.za.

Yours faithfully,

Legal Hero 

www.legalhero.co.za

Sexual Experimentation & the Youth

Let’s say you catch your 13 year old daughter and her boyfriend (also 13) kissing in her room. 

Did you know that underage kissing, children 12 to 16 years, is a crime in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007? 

According to this act consensual underage sexual activity/ penetration/ petting/ kissing is a crime. Any person who fails to report it could face possible criminal prosecution. Yes, that means that you as a parent or guardian could be charged with a crime should you fail to report your underage daughter’s smooching session. 

Enter the Teddy Bear Clinic Constitutional Court case (2014):

· Children’s rights activists argued that the criminalization of consensual underage sexual activity causes pregnant girls to avoid clinics and hospitals as they and their partners fear criminal charges;

· The Department of Justice on the other hand argued that decriminalization would negatively impact the already escalating rate of sexual violence among young children;

· The Court, however, found in favour of Teddy Bear Clinic and ruled that the criminalization of consensual underage sexual activity infringes a teenager’s right to dignity and privacy;

· The Court gave Parliament more than a year to change the Sexual Offences Act.

Enter the new draft rules which have yet to come into effect:

· Two consenting minors aged 12 to 16 will not face criminal charges following sexual activity;

· It remains a serious crime for an adult to engage in sexual activity with a minor younger than 16, regardless of the minor’s consent;

· A person aged 16 or 17 years will not face criminal charges for consensual sexual activity with an underage minor, provided the age difference is no more than two years.

“Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them.”

- S v M (Centre for Child Law as Amicus Curiae) para 18: 

Yours faithfully, 

Legal Hero

www.legalhero.co.za 

The Curious Case of Prince v President

Prince dreamed about becoming an Attorney. The Law Society, however, refused to register Prince as an Attorney due to his two previous convictions on the count of dagga possession. 

Prince took the Law Society to Court and based his arguments on the following: infringement of his right to freedom of religion as a Rastafarian, unfair discrimination as part of a minority group in South Africa, the right to choose his trade and occupation freely and infringement of his right to human dignity. 

The Constitutional Court (decided on 12 December 2000):

• Yes, the Constitutional Court agreed that the Drugs and Drug Trafficking Act of 1992 DOES in fact infringe Prince’s constitutional right to freedom of religion;
• This limitation is, however, justified. Constitutional rights are not absolute and can be limited in terms of section 36 of our Constitution “only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”
• The State has an important obligation to combat the use of and trade of drugs and has signed international agreements to do so. There is furthermore little information available on the use of dagga and South Africa’s Rastafarian community to justify a religious exemption.

Did you know? 

• · Cannabis/ marijuana/ dagga has been in use for over 8 millennia;
• · R300 million: the cost in Gauteng alone to arrest, prosecute and keep marijuana offenders in jail - according to research conducted by the Anti-Drug Alliance NGO; 
• · Some argue that there is very little evidence to support that Marijuana is harmful or addictive whilst others argue that all medicines and even herbs have side effects;
• · USA: about 23 States have legalized medical marijuana, and others are in the process of following suit;
• · South Africa: the Medical Innovation Bill (draft law to legalize marijuana in South Africa for medical, economical and industrial use), was introduced in Parliament in February 2014. It could take a number of years for the bill to be signed and become law. Some argue that the Bill is just a copy and paste version and does not cater for South Africa’s unique circumstances. 

Unfortunately Prince’s dream to become an Attorney did not materialize. One must note that the Medical Innovation Bill, even if it were law, would not have helped Prince. Reason: Prince used marijuana for religious/ spiritual purposes and not for medical reasons. In this case the Constitutional Court, however, once again acknowledges our right to freedom of religion and quotes a well-known passage from the case Christian v Minister of Education 2000 (10) BCLR 1051 (CC) para 36: 

Yours Faithfully, 

Legal Hero 

www.legalhero.co.za 

Your School's Uniform and Dress Code

The Federal Constitutional Court (Germany) declared a ban on teachers wearing Islamic headscarves unconstitutional on Friday, 13 March 2015.

The decision reminds us of the South African Constitutional Court case of a few years ago: MEC for Education v Pillay 2008. Yes, South Africa has one of the best constitutions in the world.

With Human Rights Day around the corner (21st of March), let's have a look at the Pillay case... 

It could therefore be within a learner’s right to wear a nose stud to school if it forms part of the learner's religion or culture. Schools are thus advised to allow for a procedure in terms of which a learner can apply to wear a religious or cultural piece. According to the Pillay case, the fact that an exemption might encourage more learners to express their religion or culture, should be celebrated and not feared.

Proudly South African.

www.legalhero.co.za 

Know Your Socio-economic Rights!

Socio-economic Rights include the right to adequate housing, food, health services and water. In other words, these rights are basic essentials necessary to survive. 

It differs from Civil and Political rights (the right to vote, freedom of speech, equality, etc.) necessary to lead a full life.

Our Human Rights (both Civil/ Political and Socio-economic) are found in Chapter Two of our Constitution, the Bill of Rights. The wording of our Constitution qualifies certain Socio-economic Rights. 

Socio-economic rights can be qualified or unqualified 

· Qualified: 

- Only if the State (Government) has sufficient resources to fulfil the right;

- The State will make these rights available within its means/ depending on its budget/ ‘within available resources.'

· Unqualified: 

- The State has a duty to make these rights available; 

- This does not mean the State must make these rights available immediately or without delay (according to the Constitutional Court).

Human right violations: 

Speak to your hero/ attorney. Alternatively, you may contact the South African Human Rights Commission at complaints@sahrc.org.za.

Note: non-nationals can also claim Socio-economic Rights. If you have a look at the wording used in the Bill of Rights, you'll notice the word 'everyone' is used in the socio-economic sections. Also, in the Khosa case of 2004, the Constitutional Court once again highlighted that non-nationals are a vulnerable group in our society and should be protected.

Other rights, however, such as the right to vote and access to land, use the word 'citizens.'

Wishing you a wonderful Friday and weekend, 

Legal Hero

www.legalhero.co.za 

Human Dignity – fundamental value and justiciable right

When it comes to our basic human rights, those that usually jump to mind include access to water, adequate housing, health care services, basic education, etc. Perhaps it is because these rights are easy to explain.

What about the right to dignity? Section 10 of our Constitution reads that everyone has the right to have their dignity respected and protected.

Dignity is, however, often described as ‘fluffy’ in that our Constitutional Court has yet to define it. Many therefore argue that it cannot be seen as a human right on its own and rather serves as a guide/ value when interpreting the various other human rights found in our Constitution.

In the spirit of Human Rights Month, we have assembled some of our favourite judgement quotes on human dignity. 

1. In S v Dodo, concerning cruel and degrading punishment, the court raised the importance of human dignity.

2. Human dignity furthermore endorses our political rights.

3. In the case quoted below, it was acknowledged that “dignity is a difficult concept to capture in precise terms.” Nonetheless, it was ruled that the criminalisation of sodomy impairs human dignity.

 

     4. The Dawood case highlighted that human dignity is also a justiciable and enforceable right in itself. The court stressed that a human rights infringement can infringe more than one right. Cruel and degrading punishment infringes our right to bodily integrity as well as our right to human dignity, for example.

        

Wishing you a spectacular Monday! 

Yours truly,

Legal Hero. 

www.legalhero.co.za

Three Quirky Truths about Equality

1. Banning prostitution does not amount to indirect unfair discrimination against women.

This is according to the court case of S v Jordaan. The judge ruled that the problem lies with women generating supply and not with men’s demand. It was ruled that the prohibition cannot be said to be unfair on the basis that the majority of offenders are women.

2. There is a difference between formal and substantive equality.

Formal: Equal treatment for all. Section 9(2) of our Constitution reads that everyone is entitled to the same protection and benefit of the law.
Substantive: Unequal treatment in order to reach the Constitution’s goal of an equal society. Our courts have ruled that it would take much longer to restore the injustices of the past if one were to treat everyone identically, without taking into account his/ her/ the group’s social and economic circumstances. Example: Affirmative Action.

3. In S v Hugo the court agreed that there was in fact discrimination, but ruled that the discrimination was fair.

In the Hugo case the President pardoned mothers with children under the age of 12 from prison. A single father of a child under 12 applied to have this decision declared unconstitutional as it unfairly discriminated against his gender.

The court ruled that this pardon does amount to discrimination but that this discrimination is not unfair in that the generalisation (that mothers are more often than not the caretakers of minors) is acceptable. The court, however, ruled that each case should be treated on its own merits and stressed the importance of context and the impact of the discrimination (our prisons are overcrowded, society would not react well to the release of both parents as it will be a very large group & this pardon does not deprive the father from applying for an early release).

Section 29(2) of our Marriage Act

Legally speaking, can I get married in a garden or on the beach?  

Unfortunately some uncertainty is caused by our Marriage Act vs a court ruling. The Marriage Act 25 of 1961 lists the requirements for a valid marriage. 

According to section 29(2) of the Marriage Act, a marriage officer should solemnize a marriage IN a

i.                   Church;

ii.                  Building used for religious service;

iii.                 Public office; or

iv.                 Private dwelling house with open doors.

In the case of Ex Parte Dow the couple married in a garden. The husband applied to court for an order to declare the marriage null and void. The court, however, dismissed this application and ordered that section 29(2) was to avoid couples getting married in secret.

Please note that Ex Parte Dow was decided in the Durban and Coastal Division of the High Court. Remember that the High Court in Cape Town is not bound by the ruling of the High Court in Durban or elsewhere. 

Just to be on the safe side:

-          Unless you are getting married in Durban, please also follow up your outdoor ceremony ‘legally’ by signing the relevant documents in one of the buildings mentioned above.The parties to a wedding and two competent witnesses must sign the marriage register.

Legal Hero 

www.legalhero.co.za  

Seven Interesting Facts about Surrogacy

1.       Not for convenience

The artificial insemination of a surrogate mother is only lawful if the commissioning parent/ parents have a permanent and irreversible condition and are therefore unable to give birth to a child.

2.       The surrogate mother may not receive any form of payment

The surrogate mother may not receive any form of payment or reward apart from reasonable hospital/ medical expenses.

3.       The child and the commissioning parents must share genes

For a surrogate motherhood agreement to be valid, the genetic material of both commissioning parents, and if this is not possible, at least one of the commissioning parents MUST be used.

4.       The surrogate mother may, in some instances, change her mind within 60 days after the child’s birth.

If the surrogate mother shares genetic material with the child (in the instance where only one of the commissioning parents’ genes were used), the surrogate mother may change her mind without incurring any liability.

5.       A surrogate mother may get an abortion

The commissioning parents only receive full parental rights and responsibilities the moment the child is born. The surrogate mother must hand over the baby to the commissioning parents as soon as possible.

6.       The child may not claim maintenance from the surrogate mother

The surrogate mother has no parental rights or responsibilities in terms of the surrogate child. The child may also not claim maintenance from the surrogate mother’s husband or partner.

7.       Prior to 1 April 2010 there was no law regulating or prohibiting surrogacy

‘Mater semper certa est’ = Common Law rule stating that the mother who gives birth to the child is always the parent. This meant that the surrogate mother had to put the child up for adoption and the commissioning parents had to apply in order to adopt the child.  

Today chapter 19 of the Children’s Act regulates surrogacy and explicitly states that no potential surrogate mother may be artificially inseminated without a High Court confirming the written surrogate motherhood agreement between the parties.  

Choosing a Matrimonial Property Regime

Love is wonderful but every so often it can seduce us into acting hastily and making bad life decisions. One such a decision is choosing the wrong matrimonial property regime.

What is a matrimonial property regime?
A matrimonial property regime is a big word for the financial arrangement between you and your spouse. You could either be married:
· IN community of property
· OUT of community of property; or
· OUT of community of property WITH the accrual system.

Very important:
If you are fail to register an ante-nuptial agreement BEFORE you tie the knot, you are automatically married in community of property. This means that everything your spouse OWES and OWNS also belong to you (and vice versa).

Consequences of being married in community of property:

1. This regime means that you and your spouse share everything, including that car YOU bought before you two got married;

2. There is a common estate, therefore debt incurred by your husband or wife will also become your debt;

3. If your husband or wife is then unable to pay the debt, YOUR name will ALSO be listed on ITC (in other words, you will be blacklisted);

4. If the creditors then take judgment and ask for an attachment of property order, that car you bought before you got married can be confiscated to cover your spouse’s debt!;

5. If your spouse’s spending habits lead to sequestration or debt review, you will also form part of the sequestration or debt review.


Many couples, however, prefer South Africa’s default matrimonial property regime. It may work well for women or men who choose to stay at home and raise the kids. Your spouse’s salary is then also your salary and should you decide to go your separate ways and divorce, you will receive half of everything.

How to Apply for a Protection Order

1. Go to the Magistrate’s Court and complete a Protection Order Application form.
- You may ask the Clerk of the Court for assistance;
- Take with you all supporting documents (including Affidavits of others, photos, text messages, etc.);

2. The Presiding Officer will consider your application as soon as reasonably possible.

3. If the Presiding Officer agrees that you are in danger of further harm, the Presiding Officer will issue you with an interim Protection Order.
- The Presiding Officer can issue an interim Protection Order without listening to the harasser’s side of the story;
- An Interim Protection Order is a temporary court order;
- This temporary court order will specify a future date – the return date – upon which both parties (victim and harasser) are to appear in court to each present their case.

4. A member of the SAPS or the Sheriff of the Court will serve the interim order on the harasser.

5. On the return date: the Presiding Officer will listen to both sides of the story.
- If found on a balance of probabilities that the harasser did indeed commit an act of harassment and that harm will be suffered if a final Protection Order is denied, a final Protection Order will be issued;
- If not, the interim Protection Order will fall away/ become invalid;
- The Presiding Officer may even issue a final Protection Order in the harasser’s absence should the harasser be a no-show.

WHAT IS THE POINT OF AN INTERIM AND FINAL PROTECTION ORDER? 
- An interim and final Protection Order both come with a suspended warrant of arrest;
- An interim and final protection order both specify certain rules for the harasser to follow (do not make contact/ do not come within a certain distance of the victim/ etc.);
- Should the harasser overstep any of the rules stipulated in the interim or final order, the victim can go to the Police Station and ask for the harasser’s arrest!

Who can approach the Court for a Protection Order?

Before the Protection from Harassment Act:

· Only victims involved in a domestic relationship (such as spouses in a marriage, engaged couples or parties in a romantic-, intimate- or sexual relationship) could seek recourse.

After the Protection from Harassment Act (April 2013):



· Any victim of harassment causing mental, psychological, physical or economic harm;

· Also victims that were previously left unprotected, such as children and receivers of harassment committed by way of electronic communications (SMSes) or electronic mail (emails);

· A child or a person on behalf of the child such as a friend, relative or teacher may apply for a Protection Order without the assistance of the child’s parents or guardian.

Good to know: 

· If you do not have a lawyer, visit the Magistrate’s Court and ask the Clerk of the Court to assist you with the application procedure;

· Applications may be brought outside the ordinary Court hours or on a date which is not an ordinary Court date, if the Court has reason to believe that the victim is suffering or may suffer harm if the application is not dealt with immediately;

· You also have the right to lodge a criminal case against the harasser / Respondent (crimen injuria, assault, trespassing, extortion or any other criminal charge that has bearing on a persona or property).

www.legalhero.co.za 

The Protection from Harassment Act - Introduction

Roses are red, violets are blue, do you know that I've been stalking you?

Say NO to harm (mental, psychological, physical or economic) caused by harassment.

Question 1: Please define harassment? Harassment = unwelcome...

Harassment includes:

the direct and / or indirect act that either causes mental, psychological, physical or economic harm or inspires the victim to reasonably believe that harm may be caused to him / her by unreasonably following, watching, pursuing or accosting of the victim, loitering outside of or near the building or place where the victim or a related person resides, works, carries on business, studies or happens to be;

The verbal, electronic or any other communication directed at the victim by sending or delivering letters, faxes, packages, electronic mail or other objects to the victim or leaving them where they will be found

Unwelcome explicit or implicit behavior, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the victim. The aforesaid actions would further make any reasonable person anticipate that the victim would find it offensive, humiliating or intimidating;

The implied or expressed promise of reward for taking part in a sexually oriented request;

The implied or expressed threat of punishment or actual punishment for the victim’s refusal to comply with a sexually oriented request.

Stay tuned as we will be discussing further aspects of the Protection from Harassment Act, all to follow in the course of this week.


Wishing you a fantastic day,

Legal Hero.

www.legalhero.co.za

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