Drafting of Wills

Anyone older than 16 years old, unless you cannot understand the meaning and effect of a Will.

Continue reading more on drafting of wills on a new page…

Administration of Estates

What is a Deceased Estate?

Children and the Criminal Justice System

Legal Aid SA works with Childline South Africa in matters where children’s rights are violated. Childline SA is an effective non-profit organisation that works collectively to protect children from all forms of violence and to create a culture of children’s rights in South Africa. Learn more here: https://www.childlinesa.org.za/

What is the Child Justice Act?

The Child Justice Act creates a unique and separate criminal justice system for children. The Act places an increased emphasis on restorative justice as well as on the rehabilitation and re-integration of children.

Who is legally considered a “child”?

According to the Constitution, a child is any person under the age of 18. However, the Child Justice Act recognizes that in certain instances, it would be fair to apply its provisions to persons older than 18 years. Therefore, the Child Justice Act creates three distinct categories of children and persons:
•Children under 10 years old at the time of the offence – while children under 10 are not criminally liable, the Act sets out procedures that apply to children under 10 who commit a crime. These include referral to a children’s court or counselling if necessary.
•Children over 10 years old but younger than 18 years at the time of arrest or when the summons or written notice was served on them – these are the children who the Act specifically targets and aims to protect.
•Persons between the ages of 18 and 21 who committed the offence when they were under 18 years of age – this provision recognizes that 18 to 21 year olds are still young and can benefit from the procedures in the Act.

What is Criminal Capacity?

“Criminal Capacity” relates to the age at which a child has the mental ability to distinguish between right and wrong and can understand or appreciate the consequences of his or her actions. It is the age at which children have the capacity to commit crimes and to accept responsibility for their actions.

The Child Justice Act has raised the minimum age of criminal capacity in South Africa to 10 years of age. Therefore, a child who (at the time of the alleged offence) is under 10, cannot be prosecuted. However, the Act provides for interventions for children who commit criminal acts but are under the minimum age of criminal capacity. These are educational and non-punitive measures rather than criminal sanctions.

The Act says that a child who is 10 years or older but under the age of 14 at the time of the alleged offence, is presumed NOT to have criminal capacity unless it is subsequently proved beyond a reasonable doubt that the child had such capacity at the time he or she committed the offence.

According to the law, children who are 14 years and older have full criminal capacity.

What kind of crimes does the Act deal with?

The Child Justice Act applies to all criminal offences. However it divides them into three schedules depending on the seriousness of the offences. Schedule 1 contains the least serious offences and Schedule 3 the most serious offences. These schedules then have different implications for children who are charged in terms of one of them.

If a child is charged with more than one offence and these are all dealt with in the same criminal proceedings, the most serious offence must guide the manner in which the child must be dealt with in terms of the Act.

Children and Arrest

Police may not arrest children under the age of 10. Police must hand the child over to his or her parents or a guardian. Police must also notify a probation officer that a child under the age of 10 years is alleged to have committed a crime.

Children over the age of 10 may not be arrested for a Schedule 1 offence unless there are compelling reasons justifying the arrest.

If a warrant of arrest is issued against a child, the police official that arrests that child must:
•Inform the child of his or her rights;
•Inform the child of the nature of the allegation made against him or her;
•Explain to the child the immediate procedures to be followed;
•And notify the child’s parent, an appropriate adult or guardian of the arrest.

Any child who has been arrested and remains in custody must be taken to the magistrate’s court as soon as possible but not later than 48 hours after arrest. This is regardless of whether or not an assessment has been done on the child.

Children and Pre-Trial Detention

The Act states that a child of 14 years and older charged with a Schedule 1 or 2 offence may only be sent to prison to await trial if there are substantial and compelling reasons to do so.

In addition, the Act provides that where a child is 14 years or older but under 16 years, and charged with a Schedule 3 offence, he or she may only be detained in prison if there are compelling reasons to do so. The Director of Public Prosecutions or an authorised prosecutor must also issue a certificate that shows that there is sufficient evidence to institute a prosecution against the child.

If the decision is made to detain the child before his or her first appearance at a preliminary inquiry, the police official must, depending on the age of the child and the alleged offence, consider placing the child in an appropriate child and youth care centre. If there is no centre near the court or if there are no places available in the centre, the child can be held in a police cell or lock-up pending his or her first appearance.

A child who is held in police custody must be:
•Detained separately from adults, and boys must be held separately from girls;
•Detained in conditions that will reduce the risk of harm to that child, including the risk of harm caused by other children;
•Permitted visits by parents, appropriate adults, guardians, legal representatives, social workers, probation officers, health workers, religious counsellors, etc.
•Provided with immediate and appropriate healthcare in the event of any illness, injury or psychological trauma;
•Provided with adequate food, water, blankets and bedding.

Children and Sentencing

One of the aims of the Child Justice Act is to increase the sentencing options available to the courts with regards to children.

The Act provides for the following sentencing options:
•Referral to counselling or therapy, which may include a period of temporary residence;
•Restorative justice sentences such as family group conferences and/or victim offender mediation;
•Fines or alternative fines which may include symbolic restitution, payment of compensation or any other option that the court thinks appropriate;
•Correctional supervision;
•Compulsory attendance at a non-custodial sanctions programme;
•Compulsory residence in child and youth care centres;
•Placement under the supervision of a probation officer on conditions, which may include the restriction of the child’s movement without prior written approval.

The Act states that a sentence of imprisonment may only be imposed on a child who is 14 years and older when sentenced. Furthermore a court may only do so as a measure of last resort and for the shortest appropriate period of time.

The Act states that the child can only be sentenced to imprisonment if convicted of a Schedule 3 offence; or a Schedule 2 offence where there are substantial and compelling reasons for imposing such a sentence; and a Schedule 1 offence, if the child has a record of previous convictions and substantial and compelling reasons exist for imposing a sentence of imprisonment.

These children may NOT be sentenced to more than 25 years imprisonment.

Diversion Programmes

Diversion programmes are separated from the mainstream Criminal Justice System to prevent children from being exposed to the adverse effects of the formal justice system.

Instead of the normal prosecutorial processes, children are ordered to attend programmes to address their criminal conduct. Examples of “diversions” include the child making an oral or written apology; the child being referred to counselling or therapy; doing community service or paying compensation to the victim. The purpose of a diversion programme is rehabilitative and to address the underlying problem that led the child to commit a crime.

A child is only eligible for diversion if they acknowledge their offence. The child’s compliance with the diversion order is monitored and reported back to the court. These diversions only apply to Schedule 1 offences.
Where Schedule 2 and 3 offences are involved, the child may be ordered to do a diversion but it will be supplemented with referral to intensive therapy, and/or compulsory attendance of vocational, educational or therapeutic programmes or placement. These will be under the supervision of a probation officer and may also include restrictions on the child’s movement.

Removing Criminal Records

The Act also allows for the expungement or removal of criminal records. Only criminal records for Schedule 1 and 2 offences may be wiped out. For Schedule 1 offences, a child’s criminal record can be removed after 5 years from the date of conviction and for Schedule 2 offences, after 10 years.

For the record to be removed or expunged, an application must be made to the Director-General of Justice and Constitutional Development. If the Director-General is satisfied that the child meets the requirements, he or she will issue a ‘Certificate of Expungement’.

Child rights based on age*

How to correct errors that appear in an Identity Document

If you have applied for an ID book and when you receive your ID book there are errors in the personal information contained within, the Department of Home Affairs will replace your ID book free of charge.

Bail

Divorce

This guide is designed to assist you in obtaining a decree of divorce in a Regional Court in South Africa. It gives general information only and doesn’t take the place of legal advice. Obviously, it also cannot provide specific advice about your divorce only a lawyer can do that (and help you to protect all of your rights).

Obtaining a domestic Violence Protection Order

What is Domestic Violence?

Obtaining a domestic Violence Protection Order

According to the Domestic Violence Act No. 116 of 1998 it is:

• • Any form of abuse which includes physical, sexual, emotional, psychological or economic harassment.
  • Damage to property.
  • Stalking.
  • Entry into a person’s property without their consent.
  • Any other abusive or controlling behavior where such a conduct causes harm
    or may cause harm to your health, safety, or well being.
    If these forms of abuse are happening to you or to anyone you know, you can
    apply for a protection order. A domestic violence protection order is a
    document issued by the court which prevents the abuser from:
  • Committing an act of domestic violence.
  • Enlisting the help of another person to commit any such act.
  • Entering a residence shared by the complainant and the respondent.
  • Entering a specified part of such a shared residence.
  • Entering the complainant’s residence.
  • Entering the complainant’s place of employment.
  • Preventing the complainant who ordinarily lives or lived in a shared residence from entering or remaining in the shared residence or a specified part of the
    shared residence.
  • Committing any other act as specified in the protection order.

Against whom may you seek protection?

1. He person to whom you are married, whether by civil or customary rites;
2. Your partner (whether of the same or opposite sex) who lives or has lived
together with you, even though you were not married to each other or are not
able to be married to each other (if, for example, one of you is already married
to someone else);
3. The other parent of your child or persons who share parental responsibility
with you for a child;
4. Persons who are related to you by blood ties, marriage or adoption;
5. The person with whom you shared an engagement, customary or dating
relationship, including an actual or perceived romantic, intimate or sexual
relationship of any duration;
6. A person with whom you share or have recently shared the same residence.

What must I do?

If you feel that you are a victim of any act of domestic violence as listed
above, approach the local Magistrate Court and request assistance in bringing
an application for a Protection Order.
The Clerk of the Court will assist you to complete the necessary forms and
take you before a Magistrate who will determine whether to grant the Order or
not.
Remember that in emergencies, this service is available 24 hours a day.
The Clerk of the Court will assist you in completing the necessary forms and
taking you before a Magistrate.

Which Court should I approach?

Approach the Court nearest to where you live or work. If you were forced to
leave your place of residence as a result of the violence and are living
elsewhere temporarily, you may approach the Court closest to your temporary
residence.

What is an Affidavit?

An Affidavit is a statement made under oath. This means that the person who
is making the statement has sworn to speak the truth and is aware that he/she
will be prosecuted if it is found out that the contents (or parts thereof) of the
Affidavit are untrue. It is an offence in a Court of Law to make a false
statement.

What will the interim Protection Order state?

• • The interim Protection Order will request the Respondent (the person
    who is committing the abuse) not to abuse you in the specific manner
    alleged in your Affidavit.
  • The Respondent may be ordered not to physically or verbally abuse
    you or the children. In extreme cases, the Magistrate may consider it
    appropriate to prohibit the Respondent from entering the shared house
    or restrict him/her to certain areas of the shared residence.
  • If the children are victims of the abuse, the Court may order that the
    Respondent has no or limited contact with the children.
  • The Court may make an order for emergency monetary relief. This
    means that if you need to claim medical expenses or alternate
    accommodation costs which arose directly as a result of the abuse, you
    must provide proof of the expenses incurred and request the Court to
    consider this application.
  • The Court may order the police to seize the Respondent’s firearm if
    he/she has made any threat on your life.

To fully appreciate the nature of the particular abuse that you are experiencing, the Court relies on the Affidavit that you draft when making your application. You must therefore provide the Court with all the relevant information in your Affidavit, for example, details of the incidents of abuse, the date and place and nature of the last incident.
You may not claim Maintenance money from the Domestic Violence Court. This must be done through the Maintenance Court.

What do I do with the interim Protection Order?

The interim Protection Order must be served on the Respondent as soon as possible.
You cannot personally hand over the Order to the Respondent as this will not constitute proper service. In other words, handing over the interim Protection Order is the responsibility of someone in an official capacity i.e. a Police Officer/ Sheriff/Clerk of the Court.

You must take the interim Protection Order to the Office of the Sheriff or to the police station closest to the respondent’s residential or work address.

At the police station, please remember to take down the name and/or badge number of the police person to whom you hand the Order.

This enables you to easily track the Order at a later stage. Most police stations have a designated Officer to handle domestic violence matters.

Arrange with the Police Officer to collect the Return of Service (Proof of Service). This proves that the interim Protection Order has been served on the Respondent and that they have personally received it.

The return of service must be submitted to the Clerk of the Court soon after service. Remember that in terms of the law, the Police must assist you in whatever manner stipulated in the Court Order, for example with the collection of personal belongings, your ID document, children’s books or clothes, etc.

If you find that the Police Officer is unhelpful and refuses to cooperate in terms of the Order, you may report this to the Independent Complaints Directorate.

Also note that it is not the duty of the Police to assist you with the removal of furniture, computers, crockery, etc.

What is the Return date?

The return date is the date set to allow the Court an opportunity to hear
the Respondent before the Interim Protection Order is made final.

What happens on the Return date?

In the presence of the Complainant, the Respondent has the opportunity to present his side of the story to the Magistrate.
The Respondent may file an opposing Affidavit or request an opportunity to file an opposing Affidavit.
These papers will be served on you.
You will then be given an opportunity to file a reply.

Will the Respondent be arrested with the Protection Order?

The Respondent will not be arrested upon service of the Protection
Order.
It is only upon a breach of the terms of the order that the Respondent
may be arrested.

What is Contempt of Court?

This is when the Respondent has failed to appear in Court after he has been properly served with the interim protection order notice.

What is a breach of the Protection Order?

This is when the Respondent fails to comply with the terms of the Order, e.g. when he repeats the abusive behavior that, according to the Protection Order served, he has been prohibited from committing.
The matter may be adjourned to another court date for hearing.
The Clerk of the Court will assist you or direct you to someone who will assist you with the drafting of the reply.
At the date of the hearing, the Magistrate will consider the matter and make a decision based on the Affidavits which both parties have filed.
The Magistrate may ask either or both of If the Magistrate is satisfied that the Affidavit drawn up by the applicant clearly confirms that abuse has taken place, the Magistrate will make the Protection Order final.

Will there be a Formal Hearing?

If the Magistrate is unable to make a decision on the affidavits presented to him because of the conflict of facts between your version and the Respondent’s version, i.e. if there is a dispute in the information given by both parties, the Magistrate will postpone the matter for a formal hearing.
At the hearing, both parties will be required to give oral evidence under oath and to be cross-examined by the other party. However, the respondent is only allowed to ask complainant questions via his attorney or the Magistrate.
Both parties may call witnesses to give any other supporting evidence
that they need to prove their case, for example, medical certificates,
hospital records, photographs, documents, etc.

What if the Protection Order is breached?

If the Respondent breaches the Protection Order by repeating physical
or verbal abuse on you in the manner described at the beginning of this information pack , you may file a complaint at the police station and hand in the Warrant of arrest to the police who will then arrest the Respondent, when the circumstances so permit.
Once arrested, the Respondent will face criminal charges and be tried in a Criminal Court for breaching the Protection Order.
Remember, however, that if the Court finds that the Warrant of Arrest is used maliciously (to have the Respondent arrested without just cause), then you may be prosecuted in terms of the Act.
The Respondent will appear in the Criminal Court to be tried under Criminal Charges for breaching the terms of the Protection Order served on him/her.

Can the Criminal Charges be withdrawn? 
Once the Respondent has been arrested for a breach of the Protection Order, the Applicant may not decide to withdraw the charges.
The Senior Public Prosecutor has the sole discretion to withdraw charges.

Can I set aside the Order?

You may, at any time, make an application to have the Order set aside.
It is however, at the discretion of the Magistrate as to whether or not to set aside the Order.
This will mean that the Protection Order will be declared null and void. It is important to note that in a Court of Law, it is the Magistrate’s final decision as to whether a Protection Order may be set aside.

Rights of Domestic Workers

Domestic Workers have the following rights:

Equality Courts

Introduction to the Act

Maintenance

How do you apply for maintenance?

Customary Marriages

In South Africa, the definition of a customary marriage is one that is “negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa”.

Mediation Guide

Mediation Guide – Before court proceedings have started

Step 1

Evictions – step by step

• The main purpose of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the Act) is to protect both occupiers and landowners by providing for the prohibition of illegal eviction on the one hand and procedures for eviction of unlawful occupiers on the other.
• In order to evict an unlawful occupier (lessee) from residential property, the procedure in terms of sections 4 and 5 of the Act must be complied with.
• The owner or landlord or person in charge with necessary proxy has to obtain a court order to evict an unlawful occupier. Sections 4 to 6 of the Act provide for the procedure in case of evictions (including for urgent eviction).

Step 1: Taking Instructions

• Obtain full particulars of your client and his own claim to the property.
• If he represents a trust or a legal entity, obtain proof of the authority of the person instructing you (trust deed, power of attorney and/or resolution of Board of Directors).

Establish whether the person to be evicted is:

–        a labour tenant as described in the Land Reform (Labour Tenants) Act 3 of 1996;

–        a person residing on land which belongs to another person and who on 4 February 1997 or thereafter had consent or another right in law to do so; or

–        a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land, and who never had such a right.

• Properly identify the immovable property (a stand number will be good proof in court, but is often insufficient for a Sheriff to effect service).
• Obtain as much information as possible on the person to be ejected, full names and nicknames, physical description, age and identity number, work address, telephone numbers, vehicle registration numbers, names of persons who may be claiming occupation through this person, et cetera.
• Establish whether there are other people on the property and whether they have an independent claim or say they have a claim to tenure. There may be other people on the property whose occupation should not be disturbed.
• The status of the property that is being occupied.
• The circumstances under which the person occupying entered on to the property – peruse all documentation carefully, including leases, letters and receipt books.
• The procedures already followed by your client to encourage voluntary evacuation.
• Whether any contractual arrangements that existed between your client and the person to be ejected have been terminated and, if so, whether this has been done properly.
• If the contractual arrangement that allowed occupation has not been terminated, what steps need to be taken.

Step 2: Letter of demand and cancellation

• Establish whether the lease agreement has ended, whether by cancellation due to breach by the occupier in terms of the contract or by due notice given in terms of the lease.
• The occupier of the property must be an unlawful occupier meaning that the lease agreement has come to an end, yet the occupier remains in unlawful occupation of the property, without the consent of the landlord. Therefore, the lessee has no right to occupy the property, and is an unlawful occupier.
• Obtain the signed lease agreement from the client and details of the breach of the tenant.
• In the event of the occupier failing to pay rental, the client must provide full details of the arrears, or last payment as well as deposit paid earlier.
• In the event of breach of the lease by the occupier, pay close attention to the ‘Breach Clause’ in the written agreement. A typical Breach Clause should provide for a further Cancellation Clause. Also, pay attention to the clause which provides for the manner in which notices and legal process needs to be effected or served and at what address, namely, by hand, postage, by e-mail or by registered mail to a specific address.
• In the case where there are mora debitoris on the part of the lessee, the lessor has the right to cancel the contract by notifying the lessee that he reserves the right to cancel if the lessee fails to perform.
• The breach clause in the agreement usually stipulates the number of days that is allowed to rectify the no-payment to the lessee to remedy his or her breach.
• In the event that no time period is provided for in the breach clause, the lessor must afford the lessee a reasonable time to perform, taking into account what steps the tenant may have to take, after receiving the notice, in order to effect performance (Nel v Cloete1972 (2) SA 150 (A)).
• To effect cancellation, a further juristic act is required, namely a notice that the lessor cancels the contract. The lessor may combine the two notices to bring about mora and gain a right to cancel in one single act (the Nel case).
• Should the lease agreement contain a Breach Clause, send out a letter which details notice of breach and cancellation of the lease due to breach (such as non-payment of rental).

Step 3: Draft eviction papers (action and application)

• If the lessee fails to remedy breach and the lease has been cancelled, and the tenant remains in occupation of the premises, then proceed with the legal process in terms of the Act and the Rules of Court, without delay.
• Look to establish the correct forum (court).
• Allegations where the client is the owner, the defendant is the possessor and no statutory provisions apply.
• Applicants to prove ownership normally by Title Deed.
• Respondents or occupiers are in unlawful possession at the time of institution of Application.
• It is not necessary to allege wrongfulness or absence of consent, but normally it will be part of the set of facts before the court.

Allegations where the client is not the owner

• The right of the respondent/occupiers – possession, whether contractual or statutory; and
• The termination of the right to possession.
• Remember that a person/occupiers in breach of contract – regardless of the seriousness of the breach – cannot be evicted because of such breach, unless there was a proper cancellation, preferably in writing.
• Continued occupation by the Respondent (or someone occupying through him).
• If the contract entitling occupation has not been terminated, pray for confirmation of cancellation, alternatively thereby cancel.
• The allegations necessary where the Extension of Security of Tenure Act 62 of 1997 has to be applied:
• The Respondent is an occupier as defined in section 1 of the Act.
• The land occupied by the Respondent or occupiers through him is land as defined in section 2(1)(a)/(b).
• Notice of the present proceedings in compliance with section 9(2)(d) of the Act has been given to the defendant, the municipality within whose area of jurisdiction the property is situated, and the head of the office of the Department of Land Affairs in the province where the property is situated.
• The said notice was given only after the right of residence was (validly) terminated in terms of section 8.
• Two calendar months have expired from the time the said notice was served (when the proceedings are instituted).
• If the Respondent or occupiers started occupying only after 4 February 1997
  • where a fixed or determined date was stated in the consent to occupation, particulars of such term, and that it was ‘fair’;
  • where no such date was stated, that eviction would be just and equitable.
• If the Respondent or occupiers were already in occupation on 4 February 1997
  • that fact should be alleged;
  • where reliance is to be placed on a breach of contract, the specific breach (which is material and not remedied despite notice, where applicable) should be set out;
  • where the Respondent’s right to occupy arose solely from his employment, this should be alleged and it should also be alleged that he has voluntarily resigned in circumstances not amounting to constructive dismissal;
  • where none of the circumstances stated in section 10(1) apply, and your client wishes to evict a person who had already occupied on 4 February 1997, you should allege that suitable alternative accommodation is available.
• Remember that in terms of section 17(4) of the Act, the High Court Rules apply even where proceedings are conducted in the Magistrate’s Court.
• Remember to allow at least fifteen days from judgment before executing the order to vacate to enable the automatic review in terms of section 19(3) to be conducted (Land Claims Court Practice Direction 5).
• The institution of action (summons), together with application (notice of motion), is the process to follow in the event that the lessor intends to claim arrear rental and damages coupled with an application for eviction.

Step 4: Action: Summons and particulars of claim // Application – Notice of Motion

Summons: (for recovery of rent or damages)

• The summons may contain an automatic rent interdict to prevent the tenant from removing any of the lessee’s possessions from the property (once default judgment or summary judgment is granted, a warrant of execution is issued and the Sheriff can then sell these possessions at a sale in execution in satisfaction of the arrear rental).
• Particulars of claim to contain prayers for the following (where applicable) –
• confirmation of cancellation of the lease agreement;
• confirmation of rent interdict appearing on face of the summons;
• arrear rental up to date of summons;
• interest on the arrear rental;
• costs (attorney-and-client or party-and-party, as the case may be).

Application: (for the Eviction)

Draft notice of motion containing Part A (ex parte application) and Part B (application for eviction). Part B must be in long form notice of motion.

• Draft affidavit deposed to by the lessor stating, inter alia –
  • the relevant terms of the lease agreement;
  • that the lease agreement was cancelled;
  • the tenant failed to vacate the premises despite the fact that notice of cancellation was given; and
  • the reasons for the requested eviction and why it is just and equitable to evict the unlawful occupant.

Furthermore, the affidavit must contain reference to the two notices, which are attached as annexures to the affidavit and the language of the notices.

Step 5: Section 4 notice in terms of the Act

Sections 4(1) to (5) of PIE lay down peremptory procedural requirements for the obtaining of an eviction order. Sections 4(1) to (5) read as follows:

(1) Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier.

(2) At least 14 days before the hearing of the proceedings contemplated in subsection (1), the court must serve written and effective notice of the proceedings on the unlawful occupier and the municipality having jurisdiction.

(3) Subject to the provisions of subsection (2), the procedure for the serving of notices and filing of papers is as prescribed by the rules of the court in question.

(4) Subject to the provisions of subsection (2), if a court is satisfied that service cannot conveniently or expeditiously be effected in the manner provided in the rules of court, service must be effected in the manner directed by the court: Provided that the court must consider the rights of the unlawful occupier to receive adequate notice and to defend the case.

(5) The notice of proceedings contemplated in subsection (2) must –

(a) state that proceedings are being instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

(b) indicate on what date and at what time the court will hear the proceedings;

(c) set out the grounds for the proposed eviction; and

(d) state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.

Step 6: The process in terms of the Act

• The notice of eviction proceedings contemplated in section 4(2) of PIE, which must be authorised and directed by an order of court, is in addition to the notice of proceedings in terms of the rules of court as contemplated in section 4(3) of PIE, i.e., the notice of motion;
• The date of hearing of an application is usually only determined after all the papers have been served, and since the section 4(2) notice must indicate the date on which the application will be heard, that has the consequence that an application for authorisation to serve a section 4(2) notice can only be made after all papers have been filed, i.e., after the notice of motion and affidavits have been served in accordance with the rules of court as contemplated in section 4(3).
• The notice in terms of section 4(2) of PIE must inform the recipient of the date on which the eviction proceedings will be heard. The hearing date is determined with reference to the provisions of the Uniform Rules and also the particular practice of the division.
• Rule 55(1) provides that every application shall be brought on notice of motion supported by an affidavit and addressed to the party or parties against whom relief is claimed, and to the registrar or clerk of the court.
• The notice of motion must be in a form similar to Form 1A, which is the equivalent of the long form notice of motion used in the High Court.
• The notice of motion must set a day, not less than five days after service on the Respondent, by which notice of opposition is required to be given, and must stipulate a day on which the application will be heard in the absence of any notice of opposition.

Step 7: Ex parte application (first court hearing)

• Thus the service of the (long form) notice of motion and founding affidavit in terms of section 4(3) of PIE should ordinarily precede the ex parte application to court for authorisation and directions in regard to service of a section 4(2) notice, which will then be served subsequently at a stage when the hearing date has been determined.
• Thus service will be effected twice; initially when the notice of motion and affidavits are served in accordance with the Rules, and subsequently when the section 4(2) notice is served, which contains the hearing date.

Step 8: Service of papers by the Sheriff

Instruct the Sheriff to serve the papers as follows:

• On the defendant/respondent:
  • Rent interdict summons (together with particulars of claim).
  • Application (notice of motion, affidavit and annexures).
  • The section 4 notices;

• On all other occupiers:
  • Application (notice of motion, affidavit and annexures).
  • The section 4 notices;

• On the municipality:
  • Application (notice of motion, affidavit and annexures).
  • Section 4 notices.

Take note:

• At least 14 days’ notice of the proceedings must be given to the relevant parties.
• Service of the action and application must be made timeously.

Step 9: Index and paginate the court file

• Once you have received the original papers and the returns of service from the Sheriff, index and paginate court and office file.

Step 10: Return date (second court hearing)

• On the return date the court may grant further orders with regard to the postponement or finalisation of the eviction.
• You may have received notice of opposition prior to the court hearing, in which case the matter will be argued as an opposed motion before court.
• Before a court can grant an eviction, it has to consider all the relevant circumstances and be in a position to rule that such an eviction is just and equitable.
• The Applicant/landlord or proxy holder approaches the court on the basis of ownership alone and the unlawful occupation.
• It is then the occupier who may rely on special circumstances and it is their duty to raise and present the special circumstances to the court.
• The court gives special regard to the rights of elderly, children, disabled persons and households headed by women.
• The court may only grant the eviction after considering all the relevant circumstances and has a very wide discretion in ordering the date on which the unlawful occupier is to vacate (Ndlovu v Ngcobo; Bekker and Another v Jika2003 (1) SA 113 (SCA) 17 and 19).

Take note:

• The circumstances to be considered by a court in determining whether an eviction order will be just and equitable are outlined in section 6(3) of the Act.
• At the hearing the unlawful occupier may attend and put forward reasons why he or she should not be evicted.
• The court then has discretion to grant the unlawful occupier time by which to –
  • vacate; and
  • the date on which the eviction is to take place if the unlawful occupier has not vacated as per the court’s order.
• Note the difference in the factors that the court will take into account in terms of subsection 4(6), 4(7) and section 5 of the Act.

Step 11: Court order

• The court order must clearly state on which date the occupiers must vacate the premises and, furthermore, state that if they fail to vacate the premises, the Sheriff will be authorised to remove them from the premises as of a specified date.
• The Sheriff is then empowered by virtue of this order to evict the tenant by force if necessary.
• After an order for eviction has been granted in default, it must be served on the unlawful occupier/s by the Sheriff.
• If the occupiers fail to vacate the property on the date stipulated in the court order, without delay, have the clerk of the court issue no. 30 Warrant of Ejectment. Thereafter, instruct the Sheriff to remove the occupiers of the premises and utilise the services of a locksmith if necessary;
• Provide the Sheriff with Rule 38 indemnity. 

Removal (expungement) of a Criminal Record

Expungement of a Criminal Record in terms of the Criminal Procedure Act, 1977 (Act 51 of 1997) Applications for expungement of criminal records in terms of the Criminal Procedure Act, 1977, are to be submitted to the Director General: Department of Justice and Constitutional Development as prescribed in Part I of the relevant application form.

You stand good chance to qualify for such an application if:

1. Ten years have lapsed after the date of the conviction of your offence
2. You did not receive a direct prison sentence for your conviction except a sentence of periodical imprisonment or correctional supervision
3. You have not been convicted and imprisoned for any other offence during those 10 years, without the option of a fine
4. You were sentenced to the following sentences:
   4.1. Conviction of lesser serious crimes (for example minor charges of theft, assault, fraud etc.)
   4.2. Politically motivated crimes. For most crimes where a direct sentence was not laid upon except politically motivated crimes and crimes in respect of which the punishment is now unconstitutional under our new legislation
5. You’re convicted of an offence based on race
6. You were convicted of an offence which would not be regarded as an offence in an open and democratic society based on human dignity, equality and freedom under the democratic constitutional dispensation

You will not qualify if:

1. If a period of 10 years has not lapsed since the conviction of the crime, EXCEPT for crimes that were based on race and/or politically motivated, of which punishment is now unconstitutional
2. If you were convicted of a sexual offence against a child or a mentally disabled person.
3. If your name is included in the National Register for sex offenders or the National Child Protection Register. You may however qualify if your name has been removed from the National Register
4. If you were imprisoned for an offence, which was not a political offence and or based on race
5. Serious cases where the sentence is one of imprisonment without the option of a fine for example robbery, rape, murder and assault with the intention to do grievous bodily harm

Postal address:

Director General: Dept of Justice and Constitutional Development
Private Bag X 81
Pretoria 0001

Physical address:
Momentum Centre
329 Pretorius Street, Pretoria

All applications received in this regard will be referred to the Office of the Chief Litigation Officer

Form A – APPLICATION FOR EXPUNGEMENT OF A CRIMINAL RECORD

To be completed by a person who has a criminal record older than 10 years and upon whom a fine of not more than R 20 000 was imposed and has not been sentenced to a period of imprisonment

Form B – APPLICATION FOR EXPUNGEMENT OF A CRIMINAL RECORD

To be completed by a person who wants to have his or her criminal record expunged on the basis that his or her conviction was as a result of legislation based on race or which would not be regarded as an offence under the constitutional dispensation

Form C – APPLICATION FOR EXPUNGEMENT OF A CRIMINAL RECORD

To be completed by a person who has been convicted of certain offences in terms of legislation prior to 1994

These include:

• section 1 of the Black Land Act, 1913 (Act No. 27 of 1913)
• section 12 of the Development Trust and Land Act, 1936 (Act No. 18 of 1936)
• section 5(1), read with section 5(2), of the Blacks (Urban Areas) Consolidation Act, 1945 (Act No. 25 of 1945)
• section 6, read with section 6(2), of the Blacks (Urban Areas) Consolidation Act, 1945 (Act No. 25 of 1945)
• section 8(1), read with section 8(3), of the Coloured Persons Settlement Act, 1946 (Act No. 7 of 1946)
• section 2 of the Prohibition of Mixed Marriages Act, 1949 (Act No. 55 of 1949)
• section 4 of the Prohibition of Mixed Marriages Act, 1949 (Act No. 55 of 1949)
• section 11 of the Internal Security Act, 1950 (Act No. 44 of 1950)
• section 10(6) of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 10(7) of the Black Building Workers Act, 1951 (Act No.27 of 1951) ;section 11(4) of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 14 of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 15 of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 16 of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 20(1) of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 28(7) of the Black Building Workers Act, 1951 (Act No.27 of 1951
• section 29(1) of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 30 of the Black Building Workers Act, 1951 (Act No.27 of 1951)
• section 15 of the Blacks (Abolition of Passes and Co-ordination of Documents) Act, 1952 (Act No. 67 of 1952)
• section 2 of the Criminal Law Amendment Act, 1953 (Act No. 8 of 1953)
• section 2(2) of the Reservation of Separate Amenities Act, 1953 (Act No. 49 of 1953)
• section 16 of the Sexual Offences Act, 1957 (Act No. 23 of 1957)
• section 46 of the Group Areas Act, 1966 (Act No. 36 of 1966)
• section 2 of the Terrorism Act, 1967 (Act No. 83 of 1967)
• section 3 of the Terrorism Act, 1967 (Act No. 83 of 1967)
• section 2, read with section 4(1), of the Prohibition of Foreign Financing of Political Parties Act, 1968 (Act No. 51 of 1968)

Click here to create your own exemption of school fees letter

About School Fees Exemptions

SCHOOL FEES EXEMPTIONS*

All children, including those who are refugees, have a right to education. Parents are not required to pay school fees if they are unable to afford them, and if fees exceed 10% of the total family income.

Forms to apply for school fee exemptions should be available at your local school.

A child may not be excluded from school due to non-payment of school fees by his or her guardians.

No public school may require an admissions test or reject students based on religion or ethnicity.

Who can attend School?

All children have the legal right to a basic education.

• No one can be refused admission to school based on race or religion
• No child can be denied entry to any state school because the parent(s) have not paid
  school fees or are behind on school fee payments
• You cannot be charged a registration fee, administration fee or be asked to pay fees
  up front at a State school
• A state school is not allowed to administer any test relating to admission
• No child can be refused entry because the parent/s don’t subscribe to the mission
  statement of the school

What is the difference between “no fee” and “fee-charging” schools?

If your school is declared a “no fee” school by the Minister of Education (because the school is located in a poor community), you do not have to pay ANY school fees, including activity or extra mural fees

All other State schools are “fee charging” schools

What if you cannot afford school fees?

Parents are NOT legally obliged to pay school fees if they do not earn enough money. If you are struggling to make school payments, you can apply for school fee exemptions.

This includes refugees and asylum seekers.

How do you apply for School Fee exemptions?

Forms should be available at your local school.
Once you have completed the form, you send it back to the school with a letter to the School Governing Body (SGB) asking for a school fee exemption.

The letter needs to be accompanied by a payslip or a letter from your employer.

If self-employed or unemployed, then you must provide an affidavit explaining how you support the child.

The SGB has 30 days to accept or reject an application.

If you are unhappy with the decision, you have 30 days to appeal in writing to the Head of the Department of Education in your province.

You can ask a teacher or principal to help you with the exemption process.

Automatic Exemption

The following children qualify automatically for fee exemption:

Self-Help Guide to Instituting Action in the Small Claims Court

This guide is designed to assist you in instituting action in the Small Claims Court. It starts off by explaining what the Small Claims Court is and what types of matters the Small Claims Court can listen to.

The Small Claims Court provides a cheap, simple and fast way to institute minor civil claims.

Different Small Claims Courts open at different times, but they typically open at 16h00 or 17h00 and sit outside of normal office hours. This is to allow people to make use of the court without having to take leave from their day jobs. The Small Claims Court is designed to help people with no legal knowledge or background.

Legal assistants and clerks of the Small Claims Court will assist you free of charge.

There is a prerequisite that you must appear in person; you are not allowed to have a legal representative to represent you, but neither is your opponent (the other party).

The only costs that may be awarded against a party is the limited Sheriff’s fees paid by the other party.

Continue reading the full guide on a new page…

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Unemployment Insurance Fund (UIF)

How to Claim Benefits from the Unemployment Insurance Fund (UIF)

What to do when you have a car accident.

• You must Stop and Help anyone person who has been injured
• If you are involved in an accident that causes injury to or the death of anyone, or which
  causes damage to property or any animal, you are required by law to stop your vehicle.
• It is a crime not to stop after an accident, and you could be fined up to R180 000, or sent to
  prison for up to nine years, or both.
• Get all relevant information of the motor vehicles involved in the accident.
  drivers’ names, identity numbers, addresses, telephone numbers, description of the motor vehicles, the registration numbers, and any relevant details from the licence discs, the date, time and address of the accident, the weather and road conditions when the accident occurred; any information that may be relevant.
• If an employee is driving a motor vehicle on behalf of his/her employer, then the details of the driver and the employer must be taken.
• Call the police or report the accident at the nearest police station: 
  within 24 hours if a person is killed or injured; or
  on the first working day after the accident if no person was killed or injured.
• Write down the name of the police officer spoken to and the accident report’s
  reference number.
• you must stay at the scene until a police officer says you can leave
  Co-operate with all emergency personnel and police who respond to the accident.
• Write down the names, addresses, and phone numbers of all potential witnesses of
  the accident.
• Take photographs or a video of the following:
  the scene of the accident, from as many angles and the surrounding area;
  the injuries; and any damage to property.
• Draw a sketch plan of the scene of the accident and make sure that it contains a
  fixed point so that it can easily be traced.
• Also make a statement about how the accident happened.
• If a person has been injured, a doctor must be consulted immediately, even if the
  injury is not serious.
• If the person is insured, that person has to notify his/her insurance or broker as soon
  as possible. Write down the name of the person spoken to at the insurance and the
  reference number of the claim.
• Do not interfere with the evidence.

This information will help you if you want to make a claim against your insurance or against the Road Accident Fund, or if you want to claim the costs of repairs from the other party.
At a later stage, you or your lawyers may need a copy of the accident report that is filled out by the police.
You must NOT drink any alcohol or take any drugs that have a narcotic effect unless it is on doctor’s orders.
If the police asks you to go for a medication examination, you must not drink any alcohol or take any drugs that have a narcotic effect before the examination and before you have reported the accident.
If anyone is injured in the accident, the vehicles may not be moved before the police or traffic officer has arrived and said that the vehicles can be moved.
If the accident totally blocks the passage of other vehicles, the vehicle may be moved sufficiently to allow vehicles to pass, but only after you have clearly marked the vehicle positions (for example with chalk or spray paint).

Be aware of the possible legal consequences

Some of the possible legal consequences following an accident are:

• a criminal charge of driving recklessly,
• a criminal charge of driving negligently,
• a civil claim for damage to property, or
• a civil claim for personal injury.

What must a person NOT do after an accident?

• Move his/her motor vehicle; unless it is necessary for safety or required by law.
• Subject himself/herself to further injury by standing or waiting in an area near traffic
  or other safety hazards.
• Leave the scene of an accident until the police tell him/her to do so.
• Throw away any potential evidence, such as defective products, important
  documents, or torn or blood-stained clothing.
• Engage in discussions of fault with anyone as that can be considered evidence in
  court – do not admit liability.
• Agree to settlement terms without discussing the matter with an attorney.

Can a person claim damages to his/her motor vehicle from the Road Accident Fund
(“RAF”)?

• No, the RAF does not cover damages to a person’s property, such as: damage to his/her motor vehicle; damage to his/her other property, for example, clothes; or damage to his/her fence or house when someone drives off the road and into the house.
• If a person wants to claim for his/her damaged property, s/he will have to institute a claim in court against the driver of the motor vehicle and/or his/her employer if s/he was driving a company motor vehicle.
• A person has a right to claim for damages caused by injury or death from the RAF if s/he is a victim of an accident as a result of the wrongful (negligent) driving of another. The RAF may compensate a victim of an accident for injury, and in the event of death it may compensate the dependents of that victim for their loss.

Basic information regarding Insolvency

Who is an insolvent?

An insolvent is a debtor whose estate (everything, including money, that a person owns) is under sequestration (has been placed under control until certain statutory provided time periods and/or prescribed conditions have been met).

If you are married in community of property and your spouse becomes insolvent, the Insolvency Act of 1936 considers you to be insolvent as well in light of the fact that there is only one joint estate.

When may an insolvent apply for rehabilitation?

Who can apply for rehabilitation?

• The insolvent himself or herself.
• The insolvent’s duly authorised agent, if the insolvent does not live in South Africa.
• The widow or widower of an insolvent, if they were married in community of property.
• The former spouse of an insolvent, if they were married in community of property.
• The executors of the deceased estate of an insolvent.

How soon after having been sequestrated can an insolvent apply for rehabilitation?

1. At any time
If an offer of composition is made and accepted by three quarters of creditors in number and value, and after payment has been made or security given, or
If all creditors’ claims and sequestration costs are paid in full.
2. Six months
After six months of sequestration if no claims have been proven against the estate, provided the insolvent has not been convicted of certain offences and has not previously been sequestrated.
3. Twelve months
If the insolvent has not been convicted of certain offences and has not previously been sequestrated, he may apply for rehabilitation after 12 months have elapsed from the date of the Master’s confirmation of the first trustee’s account in the estate.
4. Three years
If the insolvent has not been convicted of certain offences, but has previously been sequestrated, he may not apply for rehabilitation until three years have elapsed from the date of the Master’s confirmation of the first trustee’s account in the estate.
5. Five years
If the insolvent has been convicted of certain offences, he may not apply for rehabilitation until five years have elapsed from the date of his conviction.
6. Ten years
After 10 years have expired, an insolvent is deemed to be rehabilitated unless a court orders otherwise upon the application of an interested person. Such an application must be made within the ten year period.

Please contact an attorney or your nearest Office of the Master for more information and assistance regarding the steps to follow to apply for rehabilitation. 

For more specific details, please read sections 119 to 129 of the Insolvency Act 24 of 1936 as amended.