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Children and the Criminal Justice Systems

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 Programs

Diversion programs 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 program 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

Child rights based on age *

The age of majority in South Africa is 18 years of age. Before you turn 18 you are still considered a child. However, a child is able to legally perform certain acts and enter into certain agreements before he or she becomes an adult at the age of 18 years.

What can a child do once they reach the age of 16?

For example if a child reaches the age of 16, the law says that he or she:
•Can open and operate a bank account and be liable for all the obligations and conditions applicable to adult clients;
•Can make a valid will;
•Can buy and sell cigarettes or any other tobacco products;
•Can legally drive a motorcycle;
•Can register as a voter but can only actually vote when 18;
•Can be served papers by the court of law;
•Can consent to sex;
•Can agree to donate his/her own body organs (after death);
•Can consent to being circumcised;
•Can consent to virginity testing;
•Can apply for a Child Support Grant in his/her own name for his/her own child or younger siblings if the primary caregiver;
•Can be considered the head of a household and bear rights and responsibilities as a caregiver;
•And can work underground in a mine as part of a vocational training programme (but may NOT be employed at an underground mine until the age of 18).

What can a child do once they reach the age of 15?

When a child reaches the age of 15, the law says that he or she:
•Can be employed;
•Can choose to leave school;
•Can enter into a civil law marriage with the consent of parents or guardians. If under the age of 15, a child needs the consent of the Minister of Home Affairs as well.

What can a child do once they reach the age of 14?

Once a child reaches the age of 14, the law says that he or she:
•Can be a witness to someone else’s will;
•Can consent to his/her own medical treatment;
•Can consent to donating blood;
•Is considered to have criminal capacity and he/she can be tried and prosecuted.

What happens if a minor has a baby?

•A minor who is pregnant (or recently gave birth) can continue to depend on her parents or legal guardians for financial support;
•If the minor is not married, her parents or guardians can become the legal guardians of the baby and claim parental responsibilities. But only the High Court can grant full guardianship and only if they believe it is in the best interest of the child.
•If the minor is legally married at the time of the baby’s birth, then they have full parental rights and responsibilities;
•A minor may terminate their own pregnancy at any age.

HIV Testing/Contraceptives

Although the legal age of sexual consent is 16, minors above the age of 12 have the right to access contraceptives and undergo HIV testing. At age 12, a child may also consent to disclose his or her HIV status.

*Permission to use this material has been granted by Black Sash http://www.blacksash.org.za/

How to correct errors that appear in Identity Document

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

To apply to correct information in your ID book, simply submit the following to any office of the Department of Home Affairs:

  1. Forms BI-9 and BI-309 completed with the correct information – these are obtainable at the department of Home Affairs
  2. Proof of the error that shows the correct information e.g. birth certificate
  3. Two identical colour photographs (NOT needed at smartcard offices as ID images are captured digitally)

Re-issuing of an ID book

You can apply to have your ID book re-issued in the following instances:

  • If you are married and want to assume the surname of your spouse.
    You must submit a copy of your marriage certificate, a completed application Form BI-9 and a pay the required fee.
  • If you are a woman and want to apply for a new ID in the name of any of your previous surnames, then documentary proof showing you are entitled to use that surname must be provided (i.e. a birth certificate, a marriage certificate, etc) along with a completed Form BI-9. You will also be required to pay a fee for the re-issue.
  • If your ID book has been lost, stolen or damaged

You can apply for a replacement by:

  1. Completing Form BI-9 as well if you have not previously submitted your fingerprints
  2. Attaching additional documents as required (e.g. a marriage certificate if you are married)
  3. Paying the required fee for the re-issue

In the event you lose, damage or have your ID book stolen, you may request a Temporary Identification Certificate (TIC).
This can be done at any office of the Department of Home Affairs and is subject to the verification of your fingerprints.

Consumer Protection

How the Consumer Protection Act can help you

The Consumer Protection Act:

  • ensures that you are treated as an equal and protects you against discrimination in economic transactions
  • protects your privacy and ensures fair practice when goods or services are marketed to you
  • means you have the right to choose the agreements you enter into and continue with
  • gives you the right to the disclosure of information so that you can make informed choices
  • protects you against fraud and other dishonest practices
  • makes sure that you don’t have to agree to unfair conditions in the small print
  • allows you to return things which don’t work properly
  • protects you against goods and services that can harm you
  • makes suppliers compensate you if they have caused you a loss
  • ensures that you are educated on consumer issues and the results of your
    choices
  • makes it possible for you to form groups to promote your interests

Who and what is involved in the Consumer Protection Act?

The Consumer Protection Act can help consumers in dealings which involve advertising, marketing, promoting, selling, supplying and delivering or repairing of goods and services in South Africa.
You are a consumer if you have made a deal with a supplier, for example, when you pay for goods or services, or if goods or services are marketed to you.
Goods include things, but also information and data and the licence to use it.
Services include receiving advice or training you pay for, transport of people or goods, transactions at restaurants and hotels, entertainment and access to electronic communication.
Employment relationships, credit agreements, deals between two private consumers and goods or services supplied to government do not fall under the Consumer Protection Act.

If you have a complaint and the supplier won’t resolve it for you, you can complain to your provincial Consumer Affairs Office or the National Consumer Commission as well as other bodies.
Whenever the Consumer Protection Act refers to ’business days’ it means the days from Monday to Friday. Continue reading more on new page…  

What is a Credit Bureau?

A Credit bureau is an organisation that keeps a record of your credit information. Your credit record shows how you manage your debts and is used by credit providers and moneylenders to decide if you can afford to borrow money or pay back a new loan.

The National Credit Act says each credit bureau must be registered with the National Credit Regulator – who decides how your credit information can be used and who can see your credit record.

What is the role of a Credit Bureau?

When you take out your first loan with a credit provider, you have to fill in a form that asks for consumer credit information – including your credit history, financial history, education, employment and identity details.

This information, and the details of the loan, is given to a credit bureau that then puts together credit report.

What are the responsibilities of a Credit Bureau?

  • To file information on your credit record after the fee is paid by the credit provider
  • To make sure the information is correct and not to keep inaccurate information
  • To only keep information for the prescribed period and to a prescribed standard
  • To provide a report of the information ( a credit report), when required by credit providers or anyone else who has your permission
  • Not to charge for corrections or challenges to the information by you, the consumer
  • Not to make a negative judgement about you when they do not have any credit information

How can your credit information be used?

  • To decide whether or not you can afford credit
  • To investigate fraud, corruption or theft
  • To consider you for employment in a position that requires trust, honesty and the handling of cash or finances

What are your rights regarding a Credit Bureau?

  • To be told that a credit provider intends to report negative information on you to a credit bureau 20 working days before they do so
  • To get a copy of your credit record from a credit bureau when you ask for it – you can get one free record each year but may be charged a small fee for further records
  • To challenge information kept by a credit bureau if you are unhappy with it
  • For your information to be kept confidential, and for it to be used only for the purposes that are allowed

How do you apply for your free Credit Record?

  • Contact the Credit Bureau and ask them to send you your credit record You will need to provide some personal information – such as your ID number and address

How do you correct your Credit Record?

  • If you disagree with your credit record, you must send in the corrections within 30 days. Thereafter you can get additional free copies of your record to check the corrections have been done. After this, you must pay a small fee for a copy
  • Contact the credit bureau and ask for a dispute form. They will send you the form and a reference number
  • Complete the forms and send them back to the bureau with a copy of your ID
  • Include proof of the information you want changed, such as a debt clearance certificate or statement of account
  • If they have kept a negative listing longer than they should have, insist they remove the record from their system. They have 20 working days to investigate the matter
  • Ask for another copy of your credit report to check that the changes have been made
  • If they are unhelpful, contact the Credit Bureau Association on 011-4477194 or email enquiries@cba.co.za OR the National Credit Regulator on 0860 627627 or email complaints@ncr.org.za

 

Permission to use this material has been granted by Black Sash

 

Expungement (removal) 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)

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).

Use of this guide for self-help should be limited to uncontested divorces where there are no contentious or complicated issues regarding the children, division of the property (or debts), maintenance or pension. In any case where a divorce is or becomes contested or any complications arise (particularly with regard to any of the above), it may be best to have a lawyer represent you in your divorce. Where this guide goes beyond the scope of the uncontested, simple and uncontentious divorce, it is merely to provide you with information and understanding as to the general process and what steps your attorney is likely to take and should not be used to attempt to do these things without legal assistance – much like you would not operate on your own body from a book but might want to understand what is going to happen.

Continue reading the full guide on a new page

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:

  • Work without sexual harassment, physical harm, verbal abuse or exploitation (such as being forced to work overtime without pay)
  • Regular monthly payment of their wages
  • Refer complaints about their employers to the CCMA (Commission for Conciliation, Mediation and Arbitration)
  • A clear job description as well as written confirmation of their pay, hours, leave and deductions when they start a new job
  • The employer must issue the domestic worker with written particulars of employment, containing the following information:
  • The full name and address of the employer
  • The name and occupation of the domestic worker, or a brief description of the work for which he/she is employed
  • The place of work, and where he/she is required or permitted to work
  • Date of employment
  • The domestic worker’s ordinary hours of work and days of work
  • The domestic worker’s wage or rate and method of payment
  • The rate of pay for overtime work
  • Any other cash payments he/she is entitled to
  • Any payment in kind he/she is entitled to and the value of payment in kind
  • How frequently wages will be paid
  • Any deductions to be made from wages
  • The leave he/she is entitled to
  • The period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate
  • No one under the age of 15 can be required or permitted to work

Pay

Domestic workers are entitled to be paid a minimum wage. The amount is set by the Labour Department and changes every year.

  • Wages should be given in a sealed envelope unless paid by bank transfer
  • A payslip should also be provided with all relevant information

Details on pay slip to include:

  • the employer’s name and address
  • the domestic workers name and occupation
  • the period in respect of which payment is made
  • the domestic workers wage rate and overtime rate
  • the number of ordinary hours worked by domestic workers during that period;
  • the number of overtime hours worked by domestic workers during that period;
  • the number of hours worked by domestic workers on a public holiday or on a Sunday;
  • the domestic workers full wage
  • details of any other pay arising out of the domestic workers employment;
  • details of any deductions made
  • the actual amount paid to domestic workers
  • Medical insurance, savings, pension fund contributions, trade union subscriptions, rentals, loans or advances CAN be deducted from wages but the total amount taken off each month cannot be more than 10% of the total pay.  Employers must pay over any deductions and employer contributions to these benefit funds within 7 days
  • Money CANNOT be deducted from wages for breakages (such as crockery or electrical appliances), damages (such as ironing), meals provided during working hours, uniforms and work equipment
  • A deduction for accommodation (not more than 10% of total wage) is allowed if the employer provides a room which is in a good condition. The room must have at least one window, a door that can be locked, a toilet, and a bath or shower or access to a bathroom
  • Domestic workers are entitled to an annual cost of living increase in their wages, linked to the Consumer Price Index   

Hours

  • 45 hours is a standard working week. Any hours over that must be paid at the overtime rate of one-and-a-half times the usual wage
  • If a domestic worker is expected to come to work for less than four hours on a particular day, they should be paid for a minimum of four hours
  • If a domestic worker usually works on Sundays, they should be paid one-and-a-half times their normal hourly rate on those days. But if they don’t normally work on a Sunday and their employer asks them to do so, they must be paid two times the usual hourly wage
  • Domestic workers should NOT be asked to work more than three hours a day or 15 hours a week overtime. And they must be given a rest period of 12 hours in a row every 24 hours as well as 36 hours together at least once a week
  • Domestic workers cannot be forced to work on a public holiday. However, if they agree to work on a public holiday, they are entitled to two times (double) their normal daily wages for the usual number of hours they work. If they work for longer (more hours) than usual, they should be paid for these additional hours at their normal daily rate
  • They are also entitled to a meal break of one hour if they work for more than five hours in a row.

Leave

Domestic workers are entitled to the following leave:

  • Annual leave of three weeks a year paid at the normal rate
  • Sick leave – during the first six months of employment, a domestic worker has the right to one day of paid sick leave for every 26 days she has worked. Over a period of 3 years or 36 months, a domestic worker has the right to paid sick leave that is equal to the amount of days she usually works every six weeks. For example, Sarah works 5 days/week and therefore she will be entitled to 30 days of paid sick leave over three years. Sick leave should be paid at your normal rate of pay. An employer can request a medical certificate if the domestic worker is away from work for more than two days in a row or more than twice in eight weeks
  • Maternity leave of four consecutive months. It can start from four weeks before the birth or from when a doctor says that leave is necessary. Maternity leave is unpaid but the domestic worker should be able to claim UIF maternity benefits for just over 17 weeks. They must apply for this at least eight weeks before the birth
  • Family responsibility leave of 5 days a year. This can be used when a child is born or sick, or when a member of the family dies. It should be paid at the normal rate. The Employer can ask for proof of why the leave is needed.

Dismissal or Notice

  • A Domestic worker CANNOT be fired for taking part in a legal strike or for being pregnant. A dismissal is also considered unfair if an employer doesn’t follow the correct procedures when giving notice or if they discriminate against the employee
  • If a domestic worker is unfairly dismissed, they must refer the dispute to the CCMA (Commission for Conciliation, Mediation and Arbitration) within 30 days. If they were fired because they took part in a strike or were a member of a union, they must refer their complaint to the Labour Department
  • An employer must give at least one week’s notice of dismissal if the domestic worker has been with them for less than 6 months. But a domestic worker is entitled to at least 4 weeks’ notice if they have been working for the employer for over 6 months
  • Domestic workers have the right to stay in any accommodation provided by the employer for one month after receiving their notice or until their contract is due to finish (if that is longer)
  • An employer must provide a domestic worker with a ‘Certificate of Service’ at the end of their employment
  • If the domestic worker is made redundant or dismissed because of the employer’s changing needs or because he/she doesn’t have enough money any more, they are entitled to one week’s severance pay for every year of service.

Social Security

  • If a domestic worker works for a single employer for more than 24 hours a month, the employer must deduct 1% of their monthly wage and pay it, along with a further 1%, to the Unemployment Insurance Fund (UIF) each month
  • It is the employer’s responsibility to register their domestic worker with the UIF
  • Domestic workers then have the right to claim UIF benefits if they become unemployed

Click here for New Domestic Workers Prescribed Rates

Useful Contacts

Department of Labour
Tel: 012-309 4000
Email: webmaster@labour.gov.za
Web: www.labour.gov.za

South African Domestic and Allied Workers Union (SADSAWU)
Tel: 021 448 0045
Fax: 021 448 0047
Web: www.sadsawu.org

Drafting of Wills

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

What is needed to draft your Will?

  • Name and ID number of the executor of your estate
  • Name and ID number of your spouse
  • How you are married? (IN Community of Property; OUT of Community of Property with the accrual system or OUT of Community of Property without the accrual system)
  • Copy of marriage certificate
  • If you are divorced – a copy of your decree of divorce / settlement.
  • Full names and ID number of all the children and other persons you want to benefit from your Will
  • In the case of minor children (children younger than 18 years old: Names and ID numbers of the guardians of the minor children
  • Details of all assets, liabilities and insurance policies etc. 

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

Administration of Estates

What is a Deceased Estate?

When we die, all our possessions (house, money, pension, policies, etc.) and debts form part of our deceased estate.

Deceased-estate

 

 

 

 

You can decide what you want to happen to your property after your death. This is done by making a Will.

Reporting a Deceased Estate

When can you report?
When Thabo dies you need to report his death to the Master of the High Court within 14 days (two weeks) after his death.

Who can report?
Anyone who has any of Thabo’s property or his Will.

This can be done for instance by:

  • Magdaleen (Spouse =marriage partner, husband, wife )
  • Sipho or Eric (any other close family member)
  • Thabo can also choose a bank, trust, attorney or company to do it

Where can you report?
At the Master of the High Court (if Thabo’s deceased estate is more than R 250 000)
OR
At the Estates Office in the Magistrate’s Court (if Thabo’s estate is less than R250 000)
In the area where Thabo lived for 12 months before he died

What happens after you have reported?
The Master of the High Court can:

  • Issue a letter of executorship if the value of Thabo’s deceased estate is more than R 250 000
  • Issue a letter of authority if the value of Thabo’s deceased estate is less than R250 000

The Guardians Fund

Who can appoint a Guardian?

The Master has no jurisdiction to appoint a guardian or custodian over a minor.
Only the High Court can appoint a person, other than the natural guardian of a minor, as the legal guardian of a minor.
Only the High Court can deprive a natural guardian of guardianship over his or her minor.
As far as custody of a minor is concerned, the Child Care Act, 74 of 1983, provides that the Commissioner for Child Welfare for the district in which the minor is resident, and who is a designated Magistrate, may appoint a custodian over a minor, if after an enquiry, it is found that the minor is a child in need of care.
Section 14 of the Child Care Act sets out the circumstances in terms of which a minor is deemed to be in need of care, and includes the situation where a child has no parent or guardian or a child whose parent or guardian cannot be traced.

The custodian which the Commissioner of Child Welfare appoints, is the person who is responsible for the day to day care of the minor. The custodian does however not have the right to administer the assets of the minor.
FAQ’s on Guardian’s Fund
The Guardian’s Fund falls under the administration of the Master of the High Court.
It is a fund created to hold and administer funds which are paid to the Master on behalf of various persons known or unknown, for example, minors, persons incapable of managing their own affairs, unborn heirs, missing or absent persons or persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissary nature.
Each Master has its own Guardian’s Fund.
The purpose of the Guardian’s Fund is to protect the funds of minors, persons lacking legal competence and capacity, known or unknown, absent as well as untraceable heirs.
It is important to note that money which remains unclaimed in the Guardian’s Fund for a period of 30 years as from the date, upon which the person became entitled to claim it, is forfeited to the state.
1. What happens with the moneys when deposited in the guardian’s fund?

When the Master receives or accepts any money he/she must open an account in the books of the Guardian’s Fund in the name of the person to whom the money belongs or the estate of which that money forms part.
If it is not known to whom such money belongs, the account may be opened in the name of the person from whom the money is derived, as the estate from which the money has been received, or the estate from which the money is derived, as the case may be. money in the Guardian’s Fund is invested with the Public Investment Commission and audited annually.
2. What is the position in respect of the payment of interest?

Interest is payable on amounts paid into the Guardian’s Fund on behalf of any minor, persons incapable of managing their own affairs, unborn heirs and persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissiary nature.
The interest is calculated on a monthly basis at a rate per annum determined from time to time by the Minister of Finance. The interest is compounded monthly.
Interest is paid for a period from a month after receipt up to five years after it has become claimable, unless it is legally claimed before such expiration.

3. Can I claim any maintenance from the guardian’s fund and if, how?

An applicant can claim maintenance/allowance from the Guardian’s Fund.
The Master may pay from interest, as well as up to R250 000 from the invested capital for maintenance, like school and university fees, clothes, medical fees, boarding and lodging and any other needs that can be fully motivated.
Maintenance can be claimed by the guardian/ tutor/curator/person looking after the person of the account holder by way of an application on form J341, supported by quotations and accounts.
Payments can be made directly to the service provider, like schools, universities and bookshops.

4. When can an account holder claim the invested money and how?
Minors
A minor can claim the invested money, as well as the accrued interest on reaching the age of majority (on his/her eighteenth birthday, marriage or declaration of majority by the High Court).
However, a Testator/Testatrix can stipulate another age when a beneficiary is entitled to the invested capital in their Will. Money can be claimed by the beneficiary when entitled by way of an application on form J251, supported by a certified copy of the account holder’s identity document/passport/ marriage certificate/order of court and verification of fingerprints of applicant.
Usufructuaries / Fidei commissaries
In the case of usufructuaries/fideicommissaries, those entitled to the interest can claim the accrued interest on a monthly basisby way of a written application (J341) giving full particulars of the instrument, which created the usufructuary/fideicommissary interest.

The owner can claim the invested capital when entitled thereto (usually after the death of the usufructuary/fideicommissary) by way of an application on form J251, supported by a certified copy of the death certificate and beneficiaries identity document/passport, banking details and verification of fingerprints of applicant.

Untraced or undetermined beneficiaries
In the case of untraced or undetermined beneficiaries, money can be claimed by the beneficiary when the account comes to his/her attention. The application must be made on form J251, supported by a certified copy of the account holder’s identity document/passport and verification of fingerprints of applicant.

(The latter can be done at any Master’s Office as well as various Magistrate Courts).

5. How do payments take place?
Money/interest/maintenance is paid by EFT deposit in the payee’s banking account.

6. What happens with the money if not claimed in time?

After the lapse of a period of 30 years after the money has become claimable, the money is forfeited to the state. Every year during September the Master advertises accounts that have been unclaimed in the Government Gazette.

7. How will I know that I am entitled to money in the guardian’s fund?

The Master advertises in the Government Gazette every year during September all accounts that have become claimable. Each account is advertised three times.

8. What is the administration costs for account holders?

The Master administers all funds in the Guardian’s Fund free of charge and no administration cost is paid by account holders.
The only commission that the Master claims – and pays over to the Receiver of Revenue – is a 5% commission on dividends paid to the Guardian’s Fund by trustees and liquidators on behalf of missing creditors in insolvent estates.

9. Tracing agents

A practise whereby persons search the registers of unclaimed monies, seek out the persons entitled thereto and obtain cession of their rights is prohibited by a direction of the Minister of Trade and Industry in terms of the Harmful Business Practice Act 71 of 1988.
Notice 69 of 1965 (Government Gazette 16193 of 27 January 1995) declaring unlawful any agreement whereby a person cedes to any person charges, sets off against any debt or alienates in any other manner, his right or title to any claim against the Guardian’s Fund.
Any person is prohibited for instituting a claim in any Court of law based on such an unlawful agreement. Therefore, if money is claimed on behalf of a person / institution by a trading agent the cheque must still be made payable to the person / institution reflected in our records.
No tracers are allowed to collect cheques on behalf of beneficiaries.
No posting of cheques will be done.

10. Where do I claim these monies?

Currently the Guardian’s Fund is being administrated by six (6) Master’s Offices – Cape Town, Pretoria, Bloemfontein, Kimberley, Pietermaritzburg and Grahamstown, however, you can lodge your completed application forms at:

The relevant Master’s Office administrating the funds OR
At any of the MOVIT sites indicated below.

MOVIT Sites where fingerprints can be verified and applications can be lodged

EASTERN CAPE

Master: Bisho
1st Floor, SITA Building, Cnr. Phalo and Rharhabe Avenues, BISHO, 5605
Master: Grahamstown
Bathurst Street, GRAHAMSTOWN, 6139
Guardian’s Fund Office, Tel :046 663 4004 – 5
Master: Grahamstown
Holy Cross Building, 7 Craister Street, MTHATHA, 5099
Master: Port Elizabeth 
523 Govan Mbeki Avenue, PORT ELIZABETH, 6056
Magistrate’s Court: Butterworth 
52 Blyth Street, BUTTERWORTH, 4960
Magistrate’s Court: East London
Nr 4 Buffalo Street, EAST LONDON, 5200
Magistrate’s Court: Mount Ayliff 
67 Church Street, MOUNT AYLIFF, 4735

FREE STATE

Master: Bloemfontein 
Southern Life Building, C/o Charlotte Maxeke and Aliwal Streets, BLOEMFONTEIN, 9301
Guardian’s Fund Office, Tel : 051 411 500
Magistrate’s Court: Phuthaditjhaba 
C/o Motlaung and Setai Streets, Setsing Complex,WITSIESHOEK, 9870
Magistrate’s Court: Welkom
C/o Heeren and Buiten Streets, WELKOM, 9460

GAUTENG

Master: Pretoria 
Salu Building, C/o Thabo Sehume and Francis Baard Streets, PRETORIA, 0001
Magistrate’s Court: Atteridgeville 
1 Hlahla Street, ATTERIDGEVILLE, 0008
Magistrate’s Court: Palm Ridge 
C/o K 146 Road and Palm Ridge Road, Palm Ridge, ALBERTON

KWA-ZULU NATAL

Master: Durban 
2 Devonshire Place, 2nd Floor, DURBAN, 4001
Guardian’s Fund Office, Tel : 031 306 0123

Master: Pietermaritzburg 
241 Church Street, Colonial Building, PIETERMARITZBURG, 3201
Guardian’s Fund Office, Tel : 033 246 7055/ 7055 / 7056 / 7085 / 7086
Magistrate’s Court: Empangeni 
6 Union Street, EMPANGENI, 3880

LIMPOPO

Master: Thohoyandou 
Venda Government Building Complex, THOHOYANDOU, 0950

MPUMALANGA

Magistrate’s Court: Barberton 
President Plein and De Villiers Street, BARBERTON, 1300
Magistrate’s Court: Bushbuckridge
Graskop Main Road, BUSHBUCKRIDGE, 1280


NORTH WEST

Master: Mafikeng 
Justice Chambers, 44 Shippard Street, MAHIKENG, 2745
Magistrate’s Court: Klerksdorp 
PC Pelser Building, O R Tambo Street Entrance, KLERKSDORP, 2570

WESTERN CAPE

Magistrate’s Court: Beaufort West 
C/o Church and Bird Streets, BEAUFORT WEST, 6970
Magistrate’s Court: George 
C/o. York & Courtney Street, GEORGE, 6530
Magistrate’s Court: George 
120 St. John Street, OUDTSHOORN, 6620
Magistrate’s Court: Vredendal 
24 Voortrekker Street, VREDENDAL, 8160
* Information obtained from Department of Justice and Constitutional Development Copyright © 2018

Equality Courts

Introduction to the Act

To give effect to section 9 (4) of the Constitution of the Republic of South Africa, 1996, Parliament enacted the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000 (‘PEPUDA”). This Act seeks to further promote a democratic society that is united in its diversity, marked by human relations that reflect a caring and compassionate citizenry, and guided by the principles of equality, fairness, equity, social justice, human dignity and freedom for all.

This Act places a positive duty on the state and all persons (natural and juristic) to promote equality.

Main objectives of the Act

  • To enact legislation required by section 9(4) of the Constitution
  • To give effect to the letter and spirit of the Constitution in particular
    (a) the equal enjoyment of all rights and freedoms by every person
    (b) the promotion of equality
    (c) the prevention and prohibition of unfair discrimination
    (d) the prohibition of hate speech and harassment
  • To provide remedies for victims of unfair discrimination
  • To educate the public by raising awareness on the importance of promoting equality and overcoming unfair discrimination, hate speech and harassment
  • To facilitate compliance with international law obligations

The meaning of unfair discrimination:

Unfair discrimination is when you are treated differently as compared to other categories of people and that your dignity as a human being is impaired by such treatment.

Discrimination is regarded as unfair when it imposes burdens or withholds benefits or opportunities from any person on one of the prohibited grounds listed in the Act, namely: race, gender, sex, pregnancy, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth etc. It is important to note that the Act does not prohibit discrimination but unfair discrimination.

There are certain circumstances where discrimination can be regarded as fair e.g. measures designed to advance persons disadvantaged by the previous system of racial discrimination.

What is meant by hate speech?

Hate speech is the publishing, propagating or communication of words that are based on one or more of the prohibited grounds.

These words must be reasonably construed to demonstrate a clear intention to hurtful, harmful or to incite harm and to promote or propagate hatred e.g. by calling people by derogatory (insulting or offensive) names or words.

What is meant by harassment?

The Act defines harassment as unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to :

  • sex, gender or sexual orientation
  • a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associate with such a group

What can victims of unfair discrimination, hate speech or harassment do?

If you believe that you have been unfairly discriminated against and you are a victim of hate speech or harassment then you can lodge your complaint at any of the designated equality courts.

What are equality courts and where to find them?

Equality courts are specialised courts designated to hear matters relating to unfair discrimination, hate speech and harassment.

In terms of the Act all High Courts are equality courts for their area of jurisdiction. The Department of Justice and Constitutional Development has designated all magistrates’ courts to serve as equality courts in all the 9 provinces.

Although the equality court is a formal court sitting, the rules and procedures are more relaxed than in normal courts e.g. the court room itself is usually not as intimidating as an ordinary court, the proceedings are held in a room that is arranged in boardroom style where the complainant and the respondent sit on either side. Normal rules of the magistrates’ court apply but the presiding officer does not apply them in a rigid manner when conducting the proceedings. The environment is less intimidating.

Who can institute proceedings in the equality court?

In order to institute proceedings in the equality court it is not a requirement that one must have legal representation.

Proceedings in the equality court may be instituted by:

  • Any person acting in his/her own interests
  • Any person acting on behalf of another person who cannot act in his/her own name
  • Any person acting as a member of, or in the interests of a group or class of persons
  • Any person acting in the interest of the public
  • Any association or organization or body acting in the interests of its members
  • The South African Human Rights Commission or the Commission on Gender Equality

The Act places specific duties on the South African Human Rights Commission, the Commission on Gender Equality and other bodies that have been set up in terms of the Constitution. They are required to assist complainants in bringing complaint to the equality courts and to conduct investigations into cases and advise complainants.

Does one have to pay to institute proceedings at the equality court?

The equality courts are free of charge in other words the complainant does not have to pay any court fees.

How to lodge a complaint in the equality court

The process of lodging a complaint at the Equality court is simple and straight forward. In each of the designated courts there is a trained equality court clerk who will assist the complainant with completing the necessary forms that are obtainable at any equality court.

Powers of the equality courts

Once you have proven that you were unfairly discriminated against or that you were a victim of hate speech or harassment, the presiding officer in an equality court has the power to issue one of many orders provided in the Act against the respondent.

Example: the equality court may order that the defendant makes an unconditional apology, order the payment of any damages etc. The presiding officer may also refer the matter to an appropriate forum or institution such as the South African Human Rights Commission or the Commission on Gender Equality for mediation or conciliation.

Equality Forms in 10 official languages. Click form below to download

Remarks by the Department

The Department of Justice and Constitutional Development would like to urge people to utilise the equality courts to assert their rights to dignity and equality, in order to realise the goal of achieving equality for all.

For more information on the Act and the equality courts contact:

Adv Samuel Rasiuba
Department of Justice and Constitutional Development
Tel: (012) 315 1683
Fax: 086 629 2098
E-mail: SRasiuba@justice.gov.za

Mr Mdumiseni Wakaba
Department of Justice and Constitutional Development
Tel: (012) 357 8736
Fax: 086 507 6925
Email: MWakaba@justice.gov.za
Website: www.justice.gov.za


 

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:

  • Orphans in an orphanage and in child headed households
  • Learners with foster parents
  • Learners placed in youth care centres or in the care of a family member
  • Learners whose parents receive a social grant in their name. For example, a Child
    Support Grant

*Information obtained courtesy of Blacksash

Conditional Exemptions

These exemptions are granted to a parent who qualifies for partial exemption but, owing to personal circumstances beyond his/her control, cannot pay the reduced amount.

It also applies to parents who do not qualify for exemptions but supply information that proves an inability to pay school fees owing to personal circumstances beyond their control.

Formula used
Formula

 

 

 

To calculate the formula, fill in the following values:
E = School fees as a proportion of the family income.
F = Annual school fees, for one child. (If a parent has more than one child at the same school and the fees are not the same for all of them, the highest fees must be used in the calculation).
A = Additional monetary contributions demanded by the school.
C = Combined gross income of parents.
100 = The number by which the answer arrived at in brackets is multiplied so as to convert it into a %.

*Information obtained courtesy of Blacksash

Full Exemption

If the school fees are more than 10% of the combined annual gross income of both parents, the child is fully exempt from paying school fees.

Formula used
Formula

 

 

 

To calculate the formula, fill in the following values:
E = School fees as a proportion of the family income.
F = Annual school fees, for one child. (If a parent has more than one child at the same school and the fees are not the same for all of them, the highest fees must be used in the calculation).
A = Additional monetary contributions demanded by the school.
C = Combined gross income of parents.
100 = The number by which the answer arrived at in brackets is multiplied so as to convert it into a %.

Gross Income is your money before deductions such as tax, UIF ,medical aid contributions and pensions

Example – Full Exemption

A single parent has one child in one school. This learner’s annual school fees are R2, 500 and the additional school expenses over the year come to R20. The parent’s gross income for that year is R25, 200.

Example – Full Exemption

 

 

 

 

 

 

 

The parent qualifies for a full exemption because the school fees are 10% of her income.

*Information courtesy of Blacksash

Partial Exemptions

If the school fees are between 3.5% and 10% of the combined annual gross income of both parents, the child will qualify for partial exemptions

Formula used
Formula

 

 

 

To calculate the formula, fill in the following values:
E = School fees as a proportion of the family income.
F = Annual school fees, for one child. (If a parent has more than one child at the same school and the fees are not the same for all of them, the highest fees must be used in the calculation).
A = Additional monetary contributions demanded by the school.
C = Combined gross income of parents.
100 = The number by which the answer arrived at in brackets is multiplied so as to convert it into a %.

Example – Partial Exemption
A parent has one child in a school. The annual school fees are R2, 500, annual additional monetary contributions amount to R20. The parent’s gross annual income is R30, 000
Example – Partial Exemption

 

 

 

 

 

The school fees are between 3, 5% and 10% of the parent’s total income. The parent will
therefore qualify for a partial exemption.

  • A parent with one child at the school who spends 8, 5% of her income on school fees qualifies for a 91% fee exemption.
  • 91% of R2, 500 is R2, 275
  • R2, 500 – R2, 275 = R225
  • The parent will therefore have to pay R225 in school fees for one child

*Information obtained courtesy of Blacksash

Quick menu

Applying for a social grant

Where can you apply?

You can apply at the nearest SASSA local or counter service point of a district office in your area.

When can you apply?

You can apply from Monday to Friday but some service points are only open on certain days of the week or month.

*Check with your local counter service point for opening times.

What can you use for proof of identity?

Proof of identity, South African citizenship and age:

Adults

  • A  South African 13-digit bar-coded identity book (ID),

OR

  • A temporary South African identity document from the Department of Home Affairs
  • As a refugee, you should have a refugee identity document OR a refugee status permit together with proof of having applied for an identity document from the Department of Home Affairs.
  • Where adults act on behalf of others in applying for or receiving a grant (i.e. are ‘procurators’) they need identity documents of any country, or a passport, or a driver’s licence.

Children

  • As a South African citizen, they should have a birth certificate with a 13-digit identity number which was issued free of charge immediately after the registration of their birth at any Home Affairs service point.
  • As a South African citizen over 16 years old, they should have a South African 13 digit bar-coded identity document.
  • As a permanent resident, they should have a birth certificate OR a South African 13-digit bar-coded identity document if they are over 16.
  • As a ‘documented’ or ‘undocumented’ foreign national child, they should have a birth certificate, identity document or passport from their country of origin.If you do not have these, their biological or foster parent or primary caregiver should make an affidavit and apply for a birth certificate at the Department of Home Affairs

make sure you obtain a receipt of the application

Alternative identification documents

Section 11(1) of the 2008 Regulations of the Social Assistance Act of 2004 says that SASSA may accept alternative proof of identification where the person currently has no valid proof (an identity document or a birth certificate).

Alternative proof could include

  • A sworn statement (an affidavit) on a form provided by SASSA, and, where available
  • Proof of having applied for formal identity documentation from Home Affairs

These could also be supported by

  • A sworn statement by a reputable person (like a councillor, traditional leader, social worker, priest, school principal) who verifies that he/she knows the person, and/or
  • Other documents like baptismal certificates, school reports, clinic cards etc

Ideally alternative identification should only be used as a temporary measure.

While it has not been regulated, SASSA requires that grant beneficiaries apply to the Department of Home Affairs within three months for their proper documents.

Once the person provides proof of having applied for their documents, the grant will continue to be paid until the beneficiary receives their identity documents and returns to the SASSA office to update their records.

However, if they do not apply for these documents and do not return to SASSA to confirm that this has been done within the three month period, payment of their grant may be suspended.

How do you apply for a grant?

There are three stages in the process of applying for a grant:

  1. Application process: Filling in the application forms, taking fingerprints, interview with SASSA officer (2 hours)
  2. Notification process: Letter of approval or rejection (less than 3months)
  3. Appeals process: Appeals of the decision (within 90 days of receiving a letter of rejection)

Stage 1: Application process

The application for the social assistance grants is free and should not take longer than 2 hours. This has to be done at a SASSA office.

You must take all your proof to the nearest SASSA District office or counter service point. Some of the forms that you are required to complete will be given to you and you will need to have these correctly filled in.

You will first have to fill in an application form in the presence of a SASSA officer.

After this there will be an interview, fingerprints will be taken, and then you must present information to prove your means (income and assets) to see if you qualify under the means test.

The documents will be verified by another SASSA officer. All information that you provide during the application process will need to be signed by you as being true and correct. When the application is made, you should say how you would like the money to be paid.

In addition, if you are applying for a Disability Grant, the following steps will be taken:

  • The SASSA officer will send you to a state medical doctor or a doctor contracted by SASSA for a medical examination to assess your disability. You should show all medical records, even old records from another doctor or hospital to the doctor.
  • You must take the doctor’s certificate or assessment panel’s report back to the SASSA officer.Please check the correct procedure with your SASSA office. In some cases when the application process is completed, you will get a receipt and a copy of the completed application form. This receipt is the only proof of application that you have and should therefore be kept safe. Check that the following is on the receipt: date of application, official stamp, name of applicant, and name of SASSA officer. However, in other places SASSA will collect the form and it will not be given to you.
  • Please note that the medical assessment is free of charge for the applicant.

Stage 2: Notification process

It will take about thirty working days for your application to be processed and checked and either approved or refused.

If your application is approved it must be dated and in the language that you prefer.

If the application is approved, you should start getting payments within 3 months. Payments will be backdated to the day you applied for the grant. If you have not received payment within 3 months, you can find out what has happened to the application and when you can expect payment by contacting the following number:

SASSA toll-free helpline on 0800 601 011.

If the application is rejected, the rejection must be made in writing in the language that you prefer and it must advise you on your right to appeal and the process to follow.

Stage 3: Appeals process

If the application is rejected, a letter of appeal can be written to the Minister of Social Development explaining why you do not agree with the decision. This appeal must be sent (lodged) within 90 days of receiving the letter of rejection.

The Minister reviews the appeal and may decide to overturn the decision of rejection or may agree with the first assessment.

The Minister may also appoint an independent tribunal which has to deal with the matter within 30 days. If the matter has been referred to a tribunal, you must be given a chance to address the tribunal. The Minister must inform you, within 30 days of the finalization of the tribunal process, of the tribunal’s conclusion.

Can another person make the application on behalf of an applicant?

If the applicant cannot be made by the caregiver or beneficiary because they are too old or sick, a friend or family member can bring a letter from them and a doctor’s note saying why the primary caregiver cannot visit the office themselves.

A home visit may then be arranged. The Agency can also appoint a Procurator for this person.

Remember you can also apply for a Grant-in-Aid at the same time as you apply for an Older Person’s Grant, Disability Grant or War Veteran’s Grant if you cannot look after yourself and need full-time care.

A husband and wife can claim separate grants. If one of the spouses already receives an adult grant, then that grant must not be counted as income when you apply for a grant. If either of the spouses already gets a grant, then that grant must not be counted as income when the other spouse applies for a grant.

*Information obtained courtesy –Blacksash

Care Dependency Grant (CDG)

The Care Dependency Grant is a social grant intended to provide support to parents, primary care-givers or foster parents of any child with severe mental and/or physical disabilities up to 18 years, requiring full-time home care. Even though the child may make use of professional support services, the child should not be cared for in an institution but at home in order to qualify. The child’s disability must be assessed by a medical doctor appointed by SASSA.

The amount of the grant is R 1600.00 per month For up-to-date information on grant amounts which change on an annual basis, see the following website:

www.sassa.gov.za and www.blacksash.org.za.

The person receiving the grant is responsible for ensuring that the child is fed, clothed, receives care and stimulation as well as access to health services.

Who can apply for a Care Dependency Grant?

In order to apply for a Care Dependency Grant, the parents, primary care giver, or foster parents and the child must be:

  • South African citizens, permanent residents or refugees
  • Resident in South Africa at time of application
  • In possession of a medical/assessment report confirming disability
  • Qualify in terms of the means test for a Care Dependency Grant

 

A child with severe disabilities cannot get a Care Dependency Grant if:

  • They are being cared for on a 24 hour basis for more than 6 months in an institution that is wholly funded by government, for example a psychiatric hospital or special care centre
  • They are a refugee who is not fostering

 

What is the means test to qualify for a Care Dependency Grant?

Only the income threshold of the caregivers of the child who is care dependent is assessed. There is no asset threshold test.

The applicant, spouse and child must meet the means test (except for foster parents where a different means test applies)

Single person R 169 200.00 or R 14 100.00 per month.

Married Person R 338 400 or R 28 200.00 per month.

Therefore, receiving the Care Dependency Grant depends on the income of the entire family.

How to apply for a Care Dependency Grant

The process of applying for a Care Dependency Grant is the same as for all other grants.

The following documents are required for the application:

  • Parent/s, primary care giver, or foster parent/s bar coded identity document
  • Child/ren’s birth certificate
  • A medical report for the child, which must say what the child is able to do – this is known as a functional assessment
  • If you are the foster parent of the child, the court order making you the foster parent
  • Proof of your marital status, such as a marriage certificate, divorce papers, or a death certificate of your spouse, or a sworn statement (affidavit) if you have never married
  • Proof of the income and if you receive the care dependency grant, the primary caregiver must ensure that the child:
  • Be tested at the age of 6 years to see whether he or she needs special schooling
  • Receives appropriate education according to level of disability
  • Remain in their care
  • Be living in adequate housing
  • Be fed and given clothes to wear
  • Receive necessary medical and dental care
  • Not be in a wholly funded state-run institution

When does the Care Dependency Grant stop or lapse?

The Care Dependency Grant will be stopped in any of the following situations:

  • If the parents, caregivers or foster parents die
  • If the child dies
  • If the child is admitted into a wholly funded state institution – when the child turns 18 years (after this the child can apply for a disability grant).

The grant will be reviewed from time to time to check changes in the child’s circumstances.

*Information obtained courtesy –Blacksash

Child Support Grant

The Child Support Grant (CSG) is intended to provide for the basic needs of South African children whose parents or primary care-givers are not able to provide sufficient support due to unemployment or poverty.

Parents and primary caregivers qualify for the child support grant if their child is under the age of 18. They may apply for the CSG if they qualify as per the means test.

The amount of the grant is R 380.00 per month for every child who qualifies.

For up-to-date information on grant amounts check the following website: www.sassa.gov.za or www.blacksash.org.za.

It does not matter whether you are the parent of the child or not, or whether the parents of the child are living together, whether they are married or not married, if one  the parents is in prison, or if the mother or father receives another state grant.

Who can apply for a CSG?

A primary care-giver can apply for the Child Support Grant on behalf of a child or children in his or her care. A primary care-giver can be a parent, grandparent, or anyone who is mainly responsible for looking after and providing for the basic needs of the child. A primary care-giver must be older than 16 years old and does not need to be family of the child.

The grant will be paid for all qualifying biological or legally adopted children. In the case of non-biological children and who are not legally adopted, the grant will be paid for a maximum of six children.

The grant is paid to the primary care-giver. In all cases the grant follows the child. This means that if someone else becomes the primary care-giver, then the grant goes to that person.

The primary care-giver is responsible for ensuring that the child is fed, clothed, immunized, given access to health-care and for using the money to benefit the child. *SASSA must be allowed to have access to the child at all reasonable times.

The child’s ability to get the grant will depend on the financial situation of the primary care-giver and their spouse. If the primary care-giver is a single parent, they should first try to get money from the child’s other parent through applying for a maintenance order.

The person who applies must be:

  • The primary care-giver of the child
  • Over the age of 16 years
  • Living with the child in South Africa at the time of the application for the grant
  • South African citizen or a permanent resident
  • Pass the means test

A primary care-giver cannot apply for a grant if:

  • They are being paid to look after a child
  • Someone else is already getting a grant for the child
  • They represent an institution which takes care of the child
  • They do not qualify in terms of the means test

What is the means test to qualify for a Child Support Grant?

In order to qualify for a Child Support Grant, the primary care-giver must pass a means test to see if the child is eligible for the grant. The asset threshold test is the same for all other grants but the income threshold differs.

Income threshold

  • A single person should not earn more than R 39 600.00 per year or R 3 300.00 per month
  • A married person’s joint income with his/her spouse should not be more than R 79 200.00 per year or R 6 600.00 per month

How can a primary care-giver apply for a Child Support Grant?

The process for applying for the Child Support Grant is the same as for all other grants.

The following documents are required for the application:

  • Primary care-givers South African identity document
  • Child’s identity document or birth certificate
  • Proof that the child has been immunized
  • Proof of any maintenance received from a parent of the child, or proof of efforts made to obtain maintenance from a parent
  • Proof of your and your spouse’s earnings; if you are working, the employer must fill in a special form for an employer’s report
  • If married, a marriage certificate
  • If divorced, the court order giving details of custody of the child
  • If the primary care-giver is not the parent of the child, a letter or affidavit from the parent of the child giving the person permission to take care of the child
  • A death certificate if one or both parents is dead. If the father or mother is missing, proof of this, like a missing person’s report from the police and sworn statements from you and another family member
  • A school report is not a requirement for application for a CSG or for ongoing receipt of a grant

All copies of documents must be certified. This means they must be signed and stamped by a police officer or any other commissioner of oaths.

The applicant will be given a copy of the application or a dated receipt signed by the SASSA officer. This provides proof of the application.

If the application is not approved, a letter will be sent to give reasons for the rejection. You have the right to appeal l against this decision.

Payment of a Child Support Grant

There is supposed to be a waiting period of only up to 3 months before the primary care-giver receives payment. The first payment of the grant should include all the money from the date of application.

Payment can be made in the way that suits you:

  • Cash payment on specific days at a pay point
  • Electronic payment into a bank account

*Information obtained courtesy –Blacksash

Disability Grant

A disability grant is a social grant intended to provide for the basic needs of adults (people who are over 18 years) who are unfit to work due to a mental or physical disability. The applicant should not have refused to do work that they are capable of doing and should not have refused treatment. The disability must be confirmed by a valid medical report of a medical officer stating whether the disability is temporary or permanent.

Proof of disability

When an application is made for a disability grant, the SASSA officer will give the person a medical form to be completed by either a medical officer or an assessment panel. The medical person must write on the form what kind of disability it is and how long they think it will last.

The assessment by an assessment panel will take place if there is no doctor available. The panel will consist of medical people such as nurses, psychologists and social workers as well as community leaders such as chief magistrates or priests.
The SASSA officer sends the doctor’s certificate in with the application form. The medical officers in SASSA look at the medical certificate or assessment and see if they agree that you are disabled. If they do not agree, they turn the application down.
A person can apply for a temporary disability grant where it is believed the disability will last between six months and a year, OR a permanent disability grant where it is believed the disability will last for more than a year.
The medical certificate for a grant may not be older than 3 months at the date of application.
In order to apply for a Disability Grant the applicant must:

  • be a South African citizen, or a permanent resident or refugee
  • be resident in South Africa at the time of the application
  • be between the ages of 18 years and 60 years
  • be unfit and unable to work because of the nature of your disability
  • if married, your spouse must comply with the means test
  • have a valid identity document or produce alternative identification

A person can still apply if you are in an institution which is partially funded by the state, and may then receive a partial grant.

You cannot apply for a Disability Grant in the following cases:
If the person is living or being taken care of by any of the following institutions which are wholly funded by the state:

  • prison
  • old age home and state treatment centre
  • psychiatric hospital
  • drug rehabilitation centre

If they have refused to undergo medical treatment;
If they are receiving another grant (unless it is a Grant-in-Aid).
Applicants for a grant must have proof of the following before applying for a grant:

  • South African bar-coded identity document (to prove identity, citizenship and age)
  • If you are under 60 years bring a medical assessment or report stating that you are disabled and cannot work
  • If you are single, an affidavit stating this fact
  • Marriage certificate, if you are married
  • Divorce papers if you are divorced
  • An affidavit if your spouse has deserted you for more than 3 consecutive months
  • Death certificate, if your husband or wife died
  • If you are employed, a wage certificate
  • If you are unemployed, any UIF record of registration, discharge certificate from your previous employer and affidavit made at a police station to state you are unemployed
  • If you have a private pension, proof of the pension
  • If you have a bank account, bring a bank statement of three consecutive months
  • Proof of any other income and assets
  • If your partner died within the last 5 years, a copy of the will and the first and final liquidation and distribution accounts

*Information obtained courtesy –Blacksash

Foster Care Grants

A Foster Care Grant is a grant intended to provide for the basic needs of foster children who have been placed in the care of foster parents by a Children’s Court. The Foster Care Grant is paid to foster parents for children between the ages of 0 and 18 years. An extension order for foster care can be given until the age of 21 years if the child is still at secondary school.

Usually a grant is for 2 years but a social worker can extend the grant depending on the circumstances.

A foster parent is responsible for ensuring that the child is fed, clothed, healthy, attending school and used for the general upkeep of the child. SASSA officers must always be allowed to have access to the child.

The amount paid for a foster care grant is R920.00 per month.

For up-to-date information on grant amounts which change every year, see the following websites:

www.sassa.gov or www.blacksash.org.za.

Who can apply for a Foster Care Grant?

In order to apply for a Foster Care Grant, the foster parent and the foster child must:

  • Be resident in South Africa at the time of making the application (but they do not have to be South African citizens)
  • Be in possession of a court order that makes the foster care status legal
  • Qualify in terms of the means test for a Foster Care Grant
  • A child from any country that finds themselves in need of care and protection in South Africa, can be fostered. This will include a child who is undocumented, or a child who is a refugee
  • Only a foreign national who is a refugee can qualify to be a foster parent

What is the means test to qualify for a Foster Care Grant?

There is no means test to qualify for a Foster Care Grant.

How to apply for a Foster Care Grant

The process for applying for a Foster Care Grant is the same as for all other grants. However note that the child must have been placed in foster care by order of the court before the foster care grant can be applied for.

The following documents are required for the application:

  • The foster parent’s bar-coded identity document (ID)
  • The foster child’s RSA or non-RSA identity document or birth certificate
  • The court order indicating foster care status
  • If there is no birth certificate, check with SASSA what alternative document will be accepted

The situation of the child who is placed in need of care is reviewed from time to time. A social work review may take into account, whether the foster child:

  • Remains in the care of the parents
  • Is living in adequate housing
  • Is fed and given clothes to wear
  • Receives necessary medical and dental care
  • Goes to school regularly

When does the Foster Care Grant stop?

A Foster Care Grant will stop:

  • If the foster child or both foster parents pass away
  • If the child is no longer in the custody of the foster parent
  • When the child turns 18, the grant will stop in the last month of that year. If the child is still attending school over the age of 18 the foster placement can be extended until age 21
  • When the court order expires
  • When the child leaves school at school leaving age

The beneficiaries must inform SASSA of any changes in the foster parent/s’ or foster child/ren’s circumstances.

If a child is severely disabled, the foster parent can get a Care Dependency Grant as well as a Foster Child Grant

*Information obtained courtesy –Blacksash

Grant in Aid

The Grant-in-Aid is a social grant intended to provide for the basic needs of adults who are unable to care for themselves and is certified by a medical officer to be in need of full-time care from someone else.

The Grant-in-Aid is provided as an additional grant to adults who are already receiving one of the following grants: Older Person’s Grant / Disability Grant / War Veteran’s Grant. The Grant-in-Aid is not paid out on its own – it must be in addition to a main social grant. Please note this grant is paid out to the person receiving the main grant, and not to their assistant. In addition, the means test for the Grant-in-Aid , is linked to that of the adult grant.

In order to apply for a Grant-in-Aid you must be:

  • A South Africa citizen, or a permanent resident, or a refugee in respect of the Disability Grant
  • Resident in South Africa at the time of application
  • Receiving an adult social grant
  • Require full-time care by another person due to a physical or mental disability.
  • Not be cared for in a wholly funded state institution

What do you need in order to apply?

  • South African bar-coded identity document (to prove identity, citizenship and age)
  • A medical report or medical assessment report (less than 3 months old)
  • If single, an affidavit stating this fact
  • Marriage certificate, if you are married
  • Divorce papers if you are divorced
  • Death certificate, if your husband or wife died
  • If you are employed, a wage certificate
  • If you are unemployed, any UIF record of registration, discharge certificate from your previous employer
  • If you have a private pension, proof of the pension
  • If you have a bank account, bring a bank statement of three consecutive months
  • Proof of any other income and assets

*Information obtained courtesy –Blacksash

Pensions / Older Person’s Grant (OPG)

In order to apply for an Older Person’s Grant the applicant must:

  • Be a South Africa citizen or a permanent resident
  • Be resident in South Africa at the time of application
  • Be 60 years or older
  • If married, the spouse must comply with the means test
  • Have a valid identity document or produce alternative identification

A person cannot apply for an Older Person’s Grant in the following cases:

  1. If they are living or being taken care of by any of the following institutions which are wholly funded by the state:
  • Prison
  • Old age home and state treatment centre
  • Psychiatric hospital
  • Drug rehabilitation centre

A person can still apply if they are in an institution which is partially funded by the state, however the grant would be reduced to 25%.

  1. If the applicant is receiving another adult social grant (unless it is a Grant-in-Aid).

Applicants for a grant must have proof of the following before applying:

  • South African bar-coded identity document (to prove identity, citizenship and age)
  • If single, an affidavit stating this fact
  • Marriage certificate if the person is married
  • Divorce papers if the person has been divorced
  • Death certificate, if the husband or wife died
  • If they are employed, a wage certificate
  • If they are unemployed, any UIF record of registration, discharge certificate from the previous employer
  • If they have a private pension, proof of the pension
  • If they have a bank account, bring a bank statement of three consecutive months

Proof of any other income and assets

*Information obtained courtesy –Blacksash

The Means Test for adult social assistance grants

Anyone applying for a social grant must qualify through a means test. This is a way of measuring a person’s income and assets. If the person applies for a grant, SASSA will evaluate their income and assets. If the income and/or assets are higher than the threshold set by government, then they will not qualify for a social grant.

The means test depends on their own income and assets if they are not married, and on the income and assets of the applicant and their spouse if married.

Please note: It makes no difference if the applicant is married in community of property or out of community of property.

The income and assets thresholds set for the means test are as follows:

Assets threshold

  • single person should not have assets totaling more than

      R 1 056 000.00

  • married person’s joint assets with his/her spouse should not total more than

       R 2 112 000.00

The value of a house that a person lives in is not taken into account, regardless who it belongs to.

Income threshold

  • single person should not earn more than R R73 800.00 per year
  • or R 6150.00 per month
  • married person’s joint income with his/her spouse should not be more than R 147600.00 per year,
  • or R 12300.00 per month.

The income of a spouse is taken into account whether you are married in or out of community of property.

However, if your spouse has deserted you for more than 3 months, then the marital status of the applicant is not taken into account. In this case you would need to attest to the desertion with an affidavit.

For up-to-date information on the asset and income thresholds for the means test, check the

South African Social Security Agency (SASSA) website: www.sassa.gov.za.,

or the

Black Sash website: www.blacksash.org.za

What counts as income?

Income means money you get from somewhere else. This can be:

  • Renting out a room in your house for a fee
  • Leasing out any other property for a fee
  • From a private pension fund
  • Earning money for work that you do
  • Profits you make from farming or from any business
  • Compensation for instance from UIF, Road Accident Fund or Compensation for Occupational Injuries and Diseases Fund (COIDA)
  • Financial support received from relatives such as dependent children;
  • Maintenance received as an ex-spouse or for a child

If one of the spouses already receives a grant, then that grant must not be counted as income when you apply for a grant.

A husband and wife can claim separate grants If either of the spouses already gets a grant, then that grant must not be counted as income when the other spouse applies for a grant.

Your assets can be:

  • The value of a house or land that you or your spouse own (if the property has a bond registered over it then it is regarded as having a nil value), remember that a home that you own is not counted as an asset if you live in it
  • Bonds or loans or other outstanding debt
  • Cash in the bank or any account with a bank or building society.

What can be deducted when calculating income?

You are allowed to deduct the following:

  • Contributions to a pension fund or retirement annuity
  • Income tax that you pay
  • Payments made to a medical aid
  • Payments made to the unemployment insurance fund

Who cannot get a grant?

Whether  you are elderly, disabled, or a war veteran, a grant may still be refused if you:

  • Already get another social grant (except in the case of a Grant-in-Aid which is only given to a person if they are already receiving either an Older Person’s Grant, Disability Grant or War Veteran’s Grant)
  • A mineworker who receives money in terms of the Occupational Diseases in Mines and Works Act
  • Get money for permanent disablement from the COIDA
  • Are kept and cared for in a wholly funded state institution (like a state-run nursing home, a hospital or a prison), although you may be entitled to a part if you are in a private institution which has a contract with the state
  • Do not pass the means test.

How much money can you get?

The amount you get depends on your income. The amount also changes each year with the annual government budget.

As from 1st April 2017, the following amounts will be paid per month:

  • State Older person’s grant: R 1600.00
  • State Older person’s grant: R 1620.00 if older than 75
  • Disability grant: R 1600.00
  • War veterans grant: R 1620.00
  • Grant-in-aid: R 380.00
  • Foster Child Grant : R 930.00

*Information obtained courtesy –Blacksash

War Veteran’s Grant

In order to apply for a War Veteran’s Grant the applicant must:

  • Be a South Africa citizen, or a permanent resident
  • Be resident in South Africa at the time of application
  • Be 60 years and over
  • Have fought in the First World War (1914-1918), the Second World War (1939-1945) or the Korean War (1950-1953)
  • Not be cared for in a wholly funded State Institution
  • If married, your spouse must comply with the means test

Special grants have been introduced for war veterans who fought in the liberation struggle for a democratic South Africa. If a person thinks that they qualify they should contact their political party.

The Special Pension makes provision for individuals who made sacrifices in fighting for a democratic South Africa., In the event of the death of those who fought, their survivors may receive a pension or lump sum payment.

Applicants for a grant must have proof of the following before applying for a grant:

  • South African identity document (to prove identity, citizenship and age)
  • Proof of  ‘official war’ service (discharge certificate or medals)
  • If the applicant is under 60 years, they need to bring a medical assessment or report stating that they are disabled and cannot work
  • If single, an affidavit stating this fact
  • Marriage certificate, if the person is married
  • Divorce papers if they are divorced
  • An affidavit if the spouse has deserted the applicant for more than 3 consecutive months
  • Death certificate, if their husband or wife died
  • If the person is employed, a wage certificate
  • If the person is unemployed, any UIF record of registration, discharge certificate from your previous employer and affidavit made at a police station to state you are unemployed
  • If they have a private pension, proof of the pension
  • If they have a bank account, bring a bank statement of three consecutive months
  • Proof of any other income and assets

*Information obtained courtesy –Blacksash

Deductions from your SASSA account


What to do if you do not agree with a deduction from your SASSA account or you did not allow the deductions?
SASSA is responsible for the receipt, management and accounting for all disputes on deductions
that are registered with them.

Step 1
Go as soon as possible when you realise that you do not agree with a deduction to your nearest
SASSA Local Office.
Step 2
You will have to register your dispute
There are many ways to do this
1. Go to the Help Desk at the pay point
2. Call the National Call Centre (telephone 0800 60 10 11).
What will happen
Step 3
1. The SASSA staff will register your dispute either electronically or manually
2. You will need to provide the staff with the following documents and information
2.1. Your full names
2.2. Your ID number
2.3. Nature of complaint – include details such as how long the problem has been going on
2.4. The value of the deductions being disputed
2.5. What the deduction has been for
Step 4
You will have to complete an affidavit and it must be commissioned by the Commissioners of
Oaths appointed in each office
You do not need to go to the Police Stations to complete these

What happens after that?
Your completed affidavits will be sent to the regional official responsible for the co-ordination of all
disputes
He or she will forward the complaints and completed affidavits to SASSA department dealing with
fraud
What can be the possible outcomes?
a. Your account can blocked for future sales or products
b. If you did not allow these deductions the money deducted (taken out ) will be refunded

Contact details for South African Social Security Agency
Head Office
SASSA House •
501 Prodinsa Building Cnr Beatrix & Pretorius Street
Pretoria •
Private Bag X55662 Arcadia •
Pretoria 0083
Tel: +27 12 400 2000 • Fax: +27 12 400 2257
www.sassa.gov.za

 

MAINTENANCE

How do you apply for maintenance?

  • Phone your nearest Court to find out which court you should go to for maintenance

Phone the Maintenance Court and confirm what documents you need to bring for your
application. The following documents are usually required:

  • Identity Document
  • Identity number of person who is responsible to pay for maintenance
  • Bank statements if you have a bank account
  • List of the child/ children’s expenses
  • Documents to prove these expenses e.g. water and lights account, grocery slips, clothing accounts.
  • Contact details of the person who needs to pay maintenance such as their work address/residential address
  • Any details of their close family relatives who they are in contact with
  • Court order (if you already have one)
  • Divorce Agreement

Go to court and complete an application form ( Form A)

  • The court will provide you with a date when you need to come back. The other
    parent will also have to appear.
  • If the parent does not come to court ask the court to issue a subpoena to get the person to appear at court on a specific date.
  • You will receive a file number

Always use this number whenever you make enquires.
Make sure you get the method of payment to be recorded on the court order

Methods of payment

Maintenance can be collected in the following ways:

  • GARNISHEE ORDER –the company where the person works takes money directly from their salary and pays it into the COURTS bank account.
  • CASH PAYMENT – you collect the money over the counter at COURT
  • DIRECT PAYMENT into your bank account

The best way to collect MAINTENANCE is the direct deposit method.

The advantages are:

  • No travelling to court
  • No transport cost
  • No standing in long queues, and no time lost from work

Download and Print Forms

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”.

This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.
The Act
Customary Marriages are governed by the Recognition of Customary Marriages Act 120 of 1998 which came into operation on 15 November 2000.
Requirements for a valid customary marriage
For a customary marriage to be recognised as a valid marriage, it has to have been entered into before 15 November 2000.

However, if entered into after 15 November 2000 it must comply with the following requirements:
• The marriage must be negotiated, entered into or celebrated in accordance with customary law
• The prospective spouses must be above the age of 18 years
• Both prospective spouses must consent to the marriage
The parents of a prospective spouse who is a minor must consent to the marriage.
If he/she has no parents, then his or her legal guardian must consent.
If the parents or legal guardian cannot consent, a Commissioner of Child Welfare can be approached for consent.
Where consent is refused by either of the parents, the legal guardian or the Commissioner of Child Welfare, only a judge of the High Court may consider granting consent
If either of the prospective spouses is already a spouse in a civil marriage, a customary marriage cannot be entered into during the subsistence of the civil marriage. A similar provision is also applied to customary marriages entered into from 1 December 1988.
Although there is no restriction on the number of customary marriages that a man may enter into, no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of his marriages has been obtained.

Registering customary marriages
Customary marriages must be registered within three months of taking place.
This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.
The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:
• the two spouses (with copies of their valid identity books and a lobola agreement, if available)
• at least one witness from the bride’s family
• at least one witness from the groom’s family
• and/or the representative of each of the families
In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.
Customary marriages are registered by completing BI-1699 and paying the required fees. An acknowledgement of receipt BI-1700 will then be issued by the Department.

Registering more than one customary marriage
If a male person is already in a customary marriage and wishes to enter into another customary marriage he has to, at his own cost, get a court order from a competent court which will regulate his future matrimonial property system.
It is also possible for a male person who is already in a customary marriage to enter into a civil marriage.
They should follow the normal procedure for civil marriages.
Proprietary consequences
• The marriage concluded before the Act commenced is governed by customary law.
• The marriage concluded after the Act commenced is a marriage in community of property.

Dissolution of Customary marriage
A customary marriage may only be dissolved by a court by a decree of divorce on the ground of an irretrievable breakdown of the marriage

Civil Unions

The Civil Union Act 17 0f 2006 came into operation on the 30 November 2006 and allows anyone – regardless of their sexual orientation, gender, race, ethnic or social origin – to enter into a civil union through either a registered marriage or civil partnership and provides for the legal consequences of the solemnisation and registration of civil unions

Civil unions may be conducted by:
• designated marriage officers for specific religious denominations or organisations
• designated officers employed by the Department of Home Affairs and the Magistrates’ Courts
At least two competent witnesses must be present at the ceremony.

Requirements for registering a Civil Union
• Both persons must be 18 years or older to enter into a Civil Union
• Both persons may not be already married in terms of any other Act. E.g. Marriage Act or the Customary Marriages Act.
• The Marriage Officer must have the requisite documents listed below before he/she can register and conclude the civil union.
• Two competent witnesses must be present to witness the civil union.

Documents required to conclude a Civil Union
• Valid South African identity books for both persons entering into the Civil Union
• A valid passport if one of the partners is a foreign national
• A completed Form DHA-1763 (Declaration for the Purpose of Marriage)
• Form DHA-1766 (Civil Union register), which must be completed by the marriage officer
• A completed Form DHA-1764 (Registration of a Civil Union) in which the couple must indicate whether or not they are entering into a Civil Union marriage or a Civil Union partnership
• A copy of the Divorce Order if one of the partners was previously married but subsequently divorced.
If any of the required documentation cannot be produced, one of the partners must submit an affidavit confirming the documents cannot be made available for the purpose of concluding the Civil Union.

Registration of civil unions
• The prospective civil union partners must individually and in writing declare their willingness to enter into the civil union by signing the prescribed documents in the presence of two witnesses.
• The marriage officer and two witnesses must signed the prescribed document.
• The Marriage officer must issue the parties with a registration certificate stating that they have under this Act entered into a marriage or civil partnership as prima facie proof of the civil union.

Legal consequences of civil union
The same legal consequences that apply to the Marriage act extends to all valid legal civil unions.

Mediation Guide

Step 1

Go to the office of the mediation clerk at the court.
Explain your problem to the clerk.

Mediation Guide – Before court proceedings have started

Step 2
a) If mediation is possible the clerk will help you fill in the application form.
Alternatively you can click to download the (form 1) and take it to the mediation clerk before you have started court proceedings.

Mediation Guide – Court proceedings

b) If you are already engaged in court proceedings then click  to use the (form 3).

Step3
The Clerk will invite you and the other party to come to a meeting to discuss and agreement to mediate.

At this meeting:

  • The clerk will explain mediation.
  • The parties sign a written agreement to mediate.
  • The clerk will assist the parties to choose a mediator.
  • The date and time of the mediation will be agreed and fees paid according to a fixed tariff and shared equally by both parties.

Step 4
The mediator and the parties meet on a suitable date for a mediation session.

  • The mediator explains mediation rules and procedure.
  • Each party tells their story.
  • The mediator may ask questions.
  • The mediator suggests solutions.
  • Parties discuss what is the best solution.

Step 5
An agreement is reached.

  • The mediator helps parties to write an agreement.
  • Agreement may be made an order of court if the parties wish.

MEDIATION FORMS

Frequently Asked Questions

1. What is mediation?

It is a process by which a mediator assists the parties in a legal dispute by:

  • Facilitating discussions between the parties,
  • Assisting them in identifying issues in dispute,
  • Exploring areas of compromise,
  • Generating options in an attempt to resolve the dispute.
  • Mediation is an alternative to having the dispute resolved in court.

2. What are the advantages of mediation?

There is nothing to lose and much to gain from participating in mediation.
Very often, better outcomes are reached for children and families.

  •  It offers speedy resolution of disputes.
  • It is considerably cheaper than litigation.
  • It provides a win-win situation for both parties in a dispute.
  • The process is flexible and avoids technicalities.
  • It is a voluntary process.
  • Parties can use their own languages.

3. Where do I go for mediation services?

a. You approach the mediation clerk in the Civil Section at the Magistrate’s Court which has jurisdiction in respect of the dispute.
b. The clerk will arrange for the parties to attend a meeting to assess whether their dispute can be submitted to a mediator.
c. Mediation will be rendered at dedicated rooms identified as Therisano Centres.

Mediation services are offered at the following courts:

Gauteng 

  1. Johannesburg Central
  2. Kagiso
  3. Mogale City Krugersdorp 
  4. Palm Ridge
  5. Pretoria North
  6. Randburg
  7. Sebokeng
  8. Soshanguve
  9. Soweto

North West

  1. Mmabatho
  2. Moretele
  3. Potchefstroom

This pilot project will be rolled out to other provinces over the next two years.

4. Which matters can be referred for mediation?

Most disputes are appropriate for mediation, as long as the court has jurisdiction in respect of the matter. Examples are contractual claims; motor vehicle collision and other damages claims; neighbourhood disputes and family disputes.

5. Will there be court fees?

There are no court fees, but the mediator is entitled to charge a fee according to a fixed tariff, except where the services of a mediator are provided free of charge. The parties contribute equally to this fee, which must be paid before the mediation commences.

6. Who will be the mediator?

The mediator will be a person that the parties choose, with the help of the mediation clerk, from a panel of accredited mediators appointed by the Minister of Justice and Correctional Services. All mediators have undergone mediation training. Some specialise in particular types of matters, such as family disputes. The clerk will advise you as to which of the mediators is appropriate for your dispute, depending on factors such as area of practice and experience.

7. Will the mediator be a lawyer?

Not necessarily. Many mediators are lawyers, but they may also be experts from other professions. For example, engineers are often mediators in building construction disputes. Family disputes are often mediated by social workers or psychologists.

8. Will the mediator tell the parties who is right and who is wrong?

No, a mediator does not judge the parties or tell them what the solution to their dispute is.

  •  It is for them to find a solution that meets their needs and interests.
  • The task of the mediator is to assist them to do this.
  • The mediator will help them to identify the real issues and explore different options for resolving those issues.
  • The mediator assists them, using skills acquired through training and experience, to diffuse conflict and explore options for settlement.
  • If the parties reach agreement the mediator will assist them to draft a settlement agreement.
  • The settlement agreement is enforceable in law as a contract. It can be given additional strength by having it made an order of court, if the parties agree to this.
  • If the parties are unable to settle their dispute through mediation then they may still resort to litigation and adjudication.

9. Do I need to be represented by a lawyer?

No, parties have the right to be represented if they want to be, but this is not obligatory. Parties who are represented will be responsible for the fees of their legal practitioners. It is the task of the mediator to ensure a fair and structured process with a level playing field, irrespective of whether parties are represented by lawyers or not. Parties can also request that a friend or family member be allowed to be present during the mediation to lend support.

10. Can mediation be used where litigation has already commenced?

Yes, matters can be referred for mediation at any stage during the court process before a judgement has been given.

11. How long does the process of mediation take?

Simple disputes can often be resolved within a few days. More complex disputes may take a few weeks.

12. What happens in an event where mediation has resulted in a positive outcome, but one of the parties later fails to comply with their agreement?

If the agreement has been made an order of the court then it can be enforced through the Sheriff of the Court in the same way as any order of a civil court. If it has not been made an order of the court, then it is enforceable in the law in the same way as any other legal binding agreement.

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…

Unemployment Insurance Fund (UIF)

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

Before you start the UIF application process, make sure that you actually qualify to claim benefits.
In order to qualify for UIF, you must have been paying UIF contributions
You can confirm this by looking on your pay slip for any deductions that are marked for UIF.

All Workers that have been paying UIF contributions can claim UIF if:

  • Their employers have become bankrupt.
  • Their contracts have ended.
  • Their contracts have ended due to the death of an employer.
  • If you have been fired.

Domestic workers can claim if:

They work for more than 1 employer, and lose their employment at one of the employers or if their employer dies.
You cannot claim if you:

  • Receive benefits from the Compensation Fund.
  • Receive benefits from an unemployment fund established under the Labour Relations Act.
  • Are suspended from claiming because of fraud.
  • Quit your job, resign or abscond.
  • do not report at set dates and times.
  • Refuse training and advice that may be given by UIF staff.

When can you claim UIF?

You can claim UIF starting from your last day of employment until your UIF benefits are used up or you have started working again.
You cannot register for UIF before your current employment contract has expired and you must
claim within 6 months after you have stopped working.

How to register for UIF?

Unemployed workers must apply for UIF benefits at their nearest labour centre in person.

Step 1: The Documentation that you need.
Ensure that you have all necessary documents on hand, otherwise you will be sent away.
You need:

  • Your 13-digit bar-coded ID or passport.
  • Form UI-2.8 for banking details.

Tip: This needs to be signed by your bank and accompanied by a stamped bank statement
to confirm your bank account details form UI-19 to show your employment history.
This form is to be filled in by your previous employer.
Tip: The labour department looks at your past 4 years of work history in order to calculate
your UIF benefit amount.
Make sure you have all necessary declarations from previous employers dating back 4 years
If an employer has failed to issue you with a declaration, that employer must also fill out a UI-19 form a work seekers form last 2 payslips

Step 2: Go to the nearest labour centre
Once you have all your documentation, you must go to the nearest labour centre in person. You can find the address and telephone number of your nearest centre at

http://www.labour.gov.za/contacts/contacts

Tip: Be sure you have enough time – an average wait at the labour department can be
anything from 2-6 hours
There is a slight chance that the staff at the labour centre may ask unemployed workers to go for training or advice – this is within their rights and you will have to as they say.

How will I be paid?
Now that you have registered for UIF, the staff at the labour centre will issue you with a UIF
checklist.
On this checklist you will find time, date and signing venue.
Step 1: Go To The Signing Venue
You must appear at the designated venue on the time and date stipulated in order to sign your first UIF payment.
Bring the UIF checklist and your ID document.
Step 2: Sign the unemployment register and receive UI-6A forms
If you have successfully registered for UIF, your name will be read out from a list.
You will be required to sign a register to mark your attendance and confirm that you are still unemployed.
Collect all the UI-6A forms (one for each future signing) – make sure you keep these somewhere safe as you will need them every time you are due for a UIF payment.
Your first payment will be paid into your bank account within 2-4 days after you have signed the
register.
Step 3: Take Note of Your Next Signing Date
Make sure you are aware of your next signing date – it is printed on your UI-6A forms.
The next time you have to attend for a signing will be approximately 4 weeks apart.
You will have to hand in the relevant UI-6A form every time you attend, so make sure you have these with you.

How much will I be paid?

The amount that you will be paid is determined differently depending on the amount of your
monthly salary.
Workers who earn less than R 12 478 per month.
You will receive approximately 36%-56% of your average monthly salary from the past 4 years.
The higher your salary, the lower the percentage that you will get back.
Workers who earn more than R 12 478 per month.
You will receive a fixed monthly benefit of approximately R4250 – R4550.
How long you will be able to receive UIF depends on the length of time that you have contributed to the fund.

You are eligible to receive 1 day worth of benefits for every 6 days that you worked and
contributed UIF over the past 4 years. The maximum number of days you can claim is 238 days.

UIF Forms

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.