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 

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.

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.

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

Who gets to keep the ring?

TIP

The same applies to marriage and divorce. 

In your ante-nuptial agreement you may arrange to keep your engagement ring should you divorce (regardless of fault/ blame). As a policyholder of the Legal Hero product, you are covered for an ante-nuptial agreement.

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

Respect my dignity

Note: also often referred to as 'crimen injuria.'