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

Tell me more about Customary Law

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

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

Tell me more about customary law?

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

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

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

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

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

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

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

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

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

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

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

Legal Hero

www.legalhero.co.za

Muslim Marriage

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

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

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

Luckily there have been a few positive strides: 

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

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

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

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

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

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

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

www.legalhero.co.za

Here's to strong women

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

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

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

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

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

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

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

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

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

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

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

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).

Same Sex Marriages Introduction

Did you know? South Africa was the first country to proclaim:

a)      Sexual orientation as a human right in both its Interim (1993) and Final Constitution (1996);

b)      that discrimination based on sex, gender or sexual orientation was forbidden.

In spite of the above, the recognition of same-sex marriages only came much later as the South African Common Law (mixture of Roman Dutch and English Law) merely defined a marriage as "a union of one man with one woman, to the exclusion, while it lasts, of all others,” resulting in conflict and a direct contravention of Section 9 (the equality clause) of our Constitution.

It was not up until the lengthy and well renowned battle in Minister of Home Affairs and Another v Fourie and Another 2005, that the Common Law definition of marriage (and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage), was declared unfairly discriminatory and unjustifiable by the Constitutional Court. This judgment was handed down by nine justices, agreeing unanimously that the Common Law definition of marriage was unconstitutional and invalid. 

Wishing you a fantastic Friday and weekend ahead, 

Legal Hero. 

www.legalhero.co.za.