The power structure between landlord and tenant is imbalanced. It was common that landlords would evict tenants without notice should they be dissatisfied with the. The Consumer Protection Act, 2008 (“CPA”) was enacted to develop the common law agreement between landlord and tenant. This development mitigated the imbalance by giving tenants rights which were not available to them under common law and limiting those of the landlord. This article will examine whether a landlord can just evict a tenant and what protection is given to the tenant in such situations.

What is the Consumer Protection Act?

The Consumer Protection Act was enacted to ensure that consumers are provided with protective measures and are not exploited by suppliers. It promotes and protects the interests of all consumers, and ensures accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace. The Act applies to consumers and persons that provide goods or services as their ordinary course of business.

Is a tenant a consumer?

The CPA defines a consumer as a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business.

Does the CPA apply to lease agreements?

A transaction means where a person acting in the ordinary course of business supplies goods and/or services to consumers for consideration.

Section 5 of the CPA applies to transactions concluded within South Africa. However, not all transactions fall within the scope of the CPA. Transactions such as; in terms of which goods or services are promoted or supplied to the State, transactions where a consumer is a juristic person and the annual turnover or the value of its assets exceed R2 million, transactions that would constitute a credit agreement under the National Credit Act, but the goods or services that are the subject of the credit agreement are not excluded. 

CPA defines rental as an agreement for consideration in the ordinary course of business, in terms of which temporary possession of any premises or other property is delivered, at the direction of, or to the consumer, or the right to use any premises or other property is granted, at the direction of, or to the consumer, but does not include a lease within the meaning of the National Credit Act. If the landlord is in the business of leasing property, and the transaction is not between the State or where a consumer is a juristic person their turnover or assets are not more than R2 million then the Consumer Protection Act will apply to the lease agreement.

Can my landlord evict me without notice?

Section 14(b)(ii) states that if a consumer agreement is for a fixed term the supplier may cancel the agreement 20 business days after giving written notice to the consumer of a material failure by the consumer to comply with the agreement unless the consumer has rectified the failure within that time. This means that if a landlord wishes to evict a tenant he/she needs to first give the tenant a letter of demand stating what the tenant did that will lead to a cancellation of the lease agreement. e.g. the tenant did not pay rent or too many noise complaints, etc.  Should the tenant not pay the rent or continues with the noise within 20 business days then the landlord can cancel the agreement. Often the letter would state the issue and notice of cancellation however it is not necessary for the landlord to inform the tenant of the 20 business days rule all they have to do is give the tenant a notice of the breach. Should the tenant then rectify the issue before the end of 20 business days, then the landlord cannot evict the tenant. Business days are calculated as Monday to Friday excludes the weekend and public holidays. 

Conclusion

The CPA applies to residential leases concluded between a natural person CPA and to commercial leases concluded between a juristic entity with an asset or turnover value less than R2 million. As a tenant, you are afforded protection by the Act. In terms of the CPA, a landlord cannot evict you without notice. The notice does not have to state the period the tenant has it only needs to state the breach of the contract.  Tenants need to be careful and ensure that when a landlord is evicting them, due process was followed.

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The Prescription Act 68 of 1969 (the Prescription Act) provides different periods for different claims, except where an Act of Parliament provides otherwise. The period of prescription of any debt not listed in section 11 (d) of the Prescription Act shall be three years. 

Scenario

 In 1998 a seller sold the property to Buyer A for a sum of money. This transaction was reduced to writing by way of an agreement complete with terms.

Despite meeting the purchase price, Buyer A neglected to take occupation of the property or transfer it into their own name. In 2020, the seller entered into another written agreement with Buyer B to purchase the same immovable property for a sum of money. Buyer B indicated his intent by meeting the purchase price and paying the rates and taxes at the Johannesburg Municipality on the property. Buyer B immediately took possession of the property in terms of the written agreement. Buyer B started building on the premises with the full knowledge and consent of the Seller. He had erected one complete room and nine structures.

Buyer B intends to transfer the property into his own name but is abruptly served with an interim order from Buyer A, stopping him from erecting any further structures or transferring the property into his name until the return date

What does the law say?

In Lorentz v Melle 1978 (3) SA 1044 (T) the court took the opportunity to make a distinction between a personal right and a real right in property. It was stated that a personal right, gives its holder the capacity to claim something from another person, while a person legally entitled to control or make use of the immovable property is said to have a real right to that property. The distinction between these two rights finds importance when we accept the legal principle set by the courts, providing that ‘in the event of a sale of immovable property a real right is only obtained upon registration.’ The purchaser only acquires a personal right. The rules of common law provide that a real right is a right enforceable against the whole world; that is, against the owner of the property and all other persons who have claims to property by virtue of a contract with the owner.

Therefore, prior to occupation or transfer, the holder of the personal right (which Buyer A purports to be) has no direct control over the house itself. Thus, it is often argued that buyer A has no interest in the land but may have a claim against the seller.

In the case of, the Road Accident Fund v Mdeyibe 2011 (2) SA 26 (CC) the court decided that the right to transfer property is a debt described in section 11 (d) of the Prescription Act 68 of 1969 to which prescription applies.

Does Buyer A have a right to claim?

Buyer A’s claim or interest is nothing more than a claim for the enforcement of the purchaser’s right to ownership or occupation. As such, it is a personal right.

To enforce this right buyer A should have instituted legal proceedings against the seller to claim the transfer of the land or to take possession. Buyer A, on these sets of facts, will face prescription difficulties.

It has been years since the purchase of the premises by Buyer A, and certainly, if we are to apply case law Buyer A’s right to have the property transferred into his own name in the event of the dispute has been prescribed.

Conclusion

When you purchase immovable property, be mindful that absent registration only holds a personal right susceptible to prescription after three years. Where a person buys property but fails to take possession or transfer ownership. It does not follow that where a third party takes possession of the said property, the initial buyer is deprived of possession or ownership. The initial buyer, in actual fact, has no more than a personal right 

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People often confuse the difference between notarising and commissioning a document. Notarising a document in the event you are only required to commission it could lead you to spending money unnecessarily. Commissioning a document where you are required to notarise it could result in the document being rejected for an important court application. Therefore, it is important that one understands the difference between these two processes. 

What is a Notary?

A Notary Public, commonly referred to as a Notary, is an attorney admitted and authorised by the High Court of South Africa after having written a specialised examination for notarial practice. As a result, a Notary holds the statutory and common law powers to prepare and attest certain legalised documents, as well as administer oaths and perform other wide-ranging administrative functions of a national and international nature. Notary’s services include drafting and executing notarial deeds, authentication of signatures, and certification of copies of documents as correct or that they are “true” copies of the original.

The services of a Notary are commonly required in various fields, such as conveyancing, marriage and the authentication of documents for use in a foreign country. The Notary can draft various specialised documents, which must be signed and witnessed in his/her presence. These documents include but are not limited to, the preparation and execution of antenuptial contracts, postnuptial contracts, life partnership contracts, Notarial servitudes and bonds as well as Notarial authentication and attestation of documents for use abroad. A Notary is required by law to keep a register of these documents. 

Notarising a document

You can acquire the services of the notary public at a law firm, a financial institution such as a bank, or even from an individual source such as an independent notary public who is working from home. When notarizing a document, you need to bring along the original documents and proof of identity. Depending on the institution, there is usually a fee involved. It is therefore advisable that you call to inquire about the related fees as well as to schedule an appointment before going to your chosen institution. You cannot send a person to notarise on your behalf. 

What is a Commissioner of Oaths?

A Commissioner of Oaths is a person in terms of the Justices of the Peace and Commissioners of Oaths Act. Sections 5 and 6 of the Act state that the Minister of Justice is the one responsible for listing who will qualify as Commissioner of Oaths. Section 6 specifically deals with office-bearers who during their time in office they are considered Commissioners of Oaths. Being an ex officio commissioner of oaths is only for the period while you are in the specific post/capacity of the post. Therefore, as soon as you resign, retire or change careers, even if only changing the branch of a company, you need to apply again.

Commissioning a document     

A document is commissioned by a commissioner of oaths. You are usually required to commission a document as proof that it is a true copy of the original and that nothing on the copy has been altered. You can find the services of a commissioner of oaths at institutions such as a law firm, a bank, your local post office or a police station. When commissioning, you need to bring the original documents along with the copies. Depending on the institution, this service is rendered free of charge and you generally do not need to schedule an appointment. 

Conclusion

Notarising and commissioning have many similarities. An important difference between the two is the person who can provide the service. Only a notary public is authorised to notarise a document, whereas a document can be commissioned by various authorised individuals such as lawyers, police officers, notary publics, judges etc. The fees involved, as well as the purpose of the document also differentiate the two. 

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During the pandemic, there was a rise in divorces not only in South Africa but also worldwide. Divorce is a difficult proceeding because a family is torn apart, and the aggrieved parties are upset, and grieving for this loss. Parties to a divorce usually never want to amicably separate, they want to fight for what is theirs and by theirs, it is not their significant other but their actual property.

What happens when you are married in a community of property and you obtain an obscene amount of money and you decide to institute divorce proceedings after one year of marriage. This article will look at whether benefits in a marriage in community of property can be forfeited.

When is the forfeiture applicable?

Forfeiture of patrimonial benefits is regulated by Section 9(1) of the Divorce Act 70 of 1979 which provides that forfeiture of patrimonial benefits of the marriage will occur when the divorce decree is granted on the ground of irretrievable breakdown of the marriage. The courts would consider the following factors:

• The duration of the marriage; There are no legislative guidance or requirements which set out exactly how long the marriage should or should not be. Courts will review each matter on a case by case basis, taking into consideration the merits and applying their discretion to determine if the length of the marriage supports the forfeiture claim. 
• The circumstances leading up to the breakdown of the marriage; The Divorce Act lists various factors that could contribute to the breakdown of the marriage. It is important to note that not one factor holds more weight than the other. Failure to contribute financially to the joint estate is for example a factor which contributes to the success of forfeiture.  Any reasonable factor contributing to the divorce, being in itself or in conjunction with other factors, assist courts to grant the order.
• Any substantial misconduct by one or both parties, if applicable; Although fault in it is self is no longer a ground for divorce, courts still have a duty to consider it. The misconduct would have to be so substantial that it convinces the courts to grant the order. Substantial misconduct does not in itself justify an order for forfeiture, however, it may contribute to the same.  Courts seek to protect vulnerable parties in divorces, especially women. Forfeiture of benefits may not be used as a method of revenge or baton for punishment towards the other party. The division of assets has to be fair and reasonable and in accordance when relying on substantial misconduct the severity and nature of the misconduct will be assessed by the Court to ensure that it is a legitimate reason for the divorce.

The Court in Wijker v Wijker 1993 4 SA 720 (A ) held that all three factors don’t need to be present when seeking an order for forfeiture.

What are the benefits that will be forfeited?

Often this claim is raised in pension interests cases which include pension and provident funds, retirement annuity, and preservation funds. Section 9(1) of the Divorce Act uses the term patrimonial benefits, meaning that all the assets which would have been acquired during the course of the marriage would be forfeited.

Do you have to share the joint estate in a marriage in a community of property? 

The short answer to this question is not necessarily. When a person claims that there must be a forfeiture of benefits they must be able to prove that when the forfeiture is granted it will not unduly deprive the other party. The person would need to also prove their claim, they cannot just allege infidelity. Courts have provided that because the duration of the marriage is short it does not automatically guarantee that the forfeiture will be granted, it is merely a factor that courts would consider. For instance, if A marries at the age of 45 after accumulating a large pension fund together with two properties.  Her marriage is in a community of property. She decides to institute divorce proceedings after two years of marriage to her husband. A would have to prove one of the factors mentioned above and not just merely allege them. 

What happens once a forfeiture is applied?

Should applying the forfeiture prove to be successful and it is granted by the court, the spouse that would have unduly benefited will not receive part or whole of the patrimonial benefits of the marriage.

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For many people, the CCMA is a very scary and daunting process. There seem to be a million rules and little to no guidance from the CCMA itself. This article serves as a simple guide to the CCMA, providing you with the basics that will make the CCMA process a lot simpler. 

What is the CCMA and what is its purpose?

The CCMA is the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA was established in order to relieve pressure from other courts on labour matters and to allow employees and employers a safe space to resolve their workplace disputes in a manner that will allow the relationship between employer and employee to proceed following a dispute. The CCMA has also been established to balance the power dynamics between employer and employee. 

There are three steps to resolving a dispute at the CCMA. 

1. Conciliation – is a very informal process used by the CCMA to find an amicable solution to a dispute. No attorneys or legal representatives are allowed at this stage. If a person is not happy with the outcome of the conciliation, they are welcome to appeal the process.
2. Mediation – a slightly more structured approach to resolving the dispute. The commissioner will act as a mediator and attempt to resolve the issues in order to reach some sort of settlement agreement between the parties. No attorneys or legal representatives are allowed at this stage, and decisions from this stage are non-binding and also appealable.
3. Arbitration – this is the CCMA’s last approach. The procedure is formal and all parties involved must prepare their arguments and bundles of evidence as if they are going to a court hearing at the Magistrates’ Court or the High Court. At this stage of the process, you are advised to have an attorney or legal representative. The decisions made are binding on the parties, and they cannot be appealed. You can only review a decision made by the arbitrator.

Who can go to the CCMA? 

All employees and employers can approach the CCMA for help with their workplace disputes. The only people who cannot approach the CCMA are independent contractors, shareholders and any case that falls outside the scope of the Labour Relations Act and the Basic Conditions of Employment Act. 

How much does it cost to go to the CCMA?

The CCMA is free; however, in some instances, when labour legislation allows fees to be charged, the Commission may charge fees. The CCMA may charge fees in the following circumstances: 

• When conducting, overseeing or scrutinising any election or ballot at the request of a registered trade union or employers’ organisation. The fee is between R750 to R1000 for each day or part thereof; 
• When asked by employees, employers, registered trade unions, a registered federation of trade unions, federations of employers organisations or councils to provide advice or training relating 
  • the establishing collective bargaining structures; 
  • designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms;
  •  the functioning of workplace forums; 
  • preventing and resolving disputes and employees’ grievances; 
  • disciplinary procedures; procedures in relation to dismissals; 
  • the process of restructuring the workplace; 
  • affirmative action and equal opportunity programmes; 
  • sexual harassment in the workplace; 

The fee is between R750 and R1500 for each day or part thereof. 

• The CCMA may charge an employer with an arbitration fee in dismissal matters relating to conduct/capacity where the commissioner finds that a dismissal is procedurally unfair.

Can all labour disputes be referred to the CCMA?

The CCMA generally has jurisdiction over all labour disputes, except when:

• There is a bargaining council for that sector of the employment field. 
• The matter falls outside the scope of the Labour Relations Act and the Basic Conditions of Employment Act.
• You are an independent contractor or a shareholder.

What matters does the CCMA have jurisdiction over?

• All unfair dismissals
• Unfair labour practices
• Discrimination 
• Freedom of association
• Claims for monies that have not been paid (overtime, severance pay, leave days, salaries, wages, commission and bonuses).
• Unilateral changes to an employment contract
• Temporary employment 
• Part-time employment 

And so many more, the CCMA’s referral form has many options for the applicant to choose from. Should your dispute not be on the referral form chances are your dispute falls outside of the CCMA’s jurisdiction. 

Some rules you should be aware of:

Owing to the fact that the CCMA gets millions of applications on a regular basis, there are some rules that have been put in place to ensure that all matters are dealt with efficiently.

Time limits:

These are periods set by the CCMA in which you are allowed to bring your matter to them

• Unfair dismissals – 30 days from the date of dismissal.
• Unfair labour practices – 90 days from the date of the event
• Discrimination – 180 days from the date of the event

In the event that you submit your matter outside the time limit prescribed by the CCMA, you can always file for condonation. When applying for condonation you are essentially asking the CCMA to forgive your late application and to hear your matter because it has good merits. 

Threshold:

If you are claiming for monies owed to you by an employer, you can only approach the CCMA if you earn below the threshold of R211 596.30 per year, which is approximately R17 633,025 per month. If you earn above that amount then you are encouraged to seek remedies from the Labour Court.

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“The only man who sticks closer to you in adversity than a friend is a creditor.” – Unknown 

Consumer debts are not a problem, they are one of the greatest dynamic factors in our economy, the issue arises when debtors are unable to pay what is due without having to seek professional help. Insolvency law is a common practice throughout the world because debt management is difficult for everyone. When a person is unable to pay their creditors it means that they are insolvent. In South Africa, only High courts can declare you insolvent. Once you are declared insolvent your assets are sequestrated. The Insolvency Act provides for two types of sequestrations and the friendly sequestration is controversial in South African insolvency law here’s why.

What is sequestration?

Sequestration is a High court order that declares that the estate of the debtor be surrendered into an insolvent estate where it shall be distributed to creditors by a trustee. In South Africa, there are two types of sequestrations voluntary surrender and compulsory sequestration. Section 2 of the Insolvency Act defines a debtor as a person (or partnership, or estate of a  person, or partnership and or company) that is placed under liquidation. The South African insolvency law aims to provide for an equitable distribution of the debtor’s property to the advantage of his creditors. It is not meant to benefit the debtor. 

The controversy surrounding friendly sequestration

The friendly sequestration process forms part of the 8 acts of insolvency. Friendly sequestrations occur when a debtor notifies their creditors in writing that they are unable to pay their debt. When the debtor becomes insolvent, he or she usually notifies a relative, friend, or close associate who is also that they are unable to pay, so that such a creditor can enforce compulsory sequestration against the debtor based on this act of insolvency.

Friendly sequestrations are allowed in our law. On the surface, it appears to not be sinister, coming off as a way in which the debtor can evade the need to apply for voluntary surrender of their estate. The Insolvency Act developed the sequestration process from a creditor-oriented to a debtor-friendly model. It is so controversial because often the debtor would collude with relatives, friends, and/or close associates to attempt at their level best to rescue another from the clutches of creditors. The courts would be abused and be provided with false and/or unreliable evidence. The main way in which the abuse can occur with friendly sequestration is through a provisional sequestration order which has the sole aim of prolonging the rule nisi through repeated extensions which leads to obstructing a judgement or sale in execution. The debtor may want to avoid the proceedings instituted against them; in certain circumstances, some of the major creditors that have security for their claims may be required to contribute to the costs of the sequestration if they should prove their claims against the insolvent estate.

Challenges Arising from a Lack of Residue in an Insolvent Estate where Friendly Sequestration Has Taken Place

One of the greatest challenges that can be seen in friendly sequestration is a lack of residue in the debtor’s estate. Often the free residue can be insufficient to meet the costs of sequestration. In terms of s106 of the Act,  it establishes that the sequestering creditor must contribute to the sequestration order. Section 106  illustrates that if the free residue is insufficient, then all creditors who have proved claims against the estate are liable to make good any deficiency.

The case of Snyman v the Master 2003 (1) SA 239 (T),  illustrates the issues arising from a lack of residue in an insolvent estate. In  Snyman, ABSA Bank had to contribute to the costs of the sequestration because of the lack of residue. The case highlighted that this is not only unfair to the creditor but also unjust as it is not benefiting them as sequestration should. it is causing the creditor to spend their finances for the cost of the debtor’s sequestration.

Conclusion

Due to the increased abuse, courts are strict toward friendly sequestration it is not uncommon to see the court reject friendly sequestration and order debtors to simply pay off their debts. This could have a worse outcome for creditors as often they may have to contribute to the costs of sequestration.

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Many foreign nationals visit and live in South Africa under various permits and visas. A problem often arises when the visa expires, and the person who is the holder of this visa overstays their welcome in South Africa. The main issue that these people face is that they will be banned from South Africa for usually 5 (five) years. Despite being banned, there are appeals that people can make to the Director-General of Home Affairs and the Department of Home Affairs itself to overturn these decisions.

How does one get banned from South Africa?

When one is banned from South Africa, they have been declared an undesirable person in terms of section 30 of the Immigration Act 13 of 2002 (“the Act). Section 30(1) of the Act lists the various types of undesirable people such as:

1. One who is likely to become a public charge;
2. You have been identified as such by the Minister;
3. You have been judicially declared incompetent;
4. You are an unrehabilitated insolvent;
5. You have been ordered to deport in terms of the Act;
6. You are a fugitive from justice;
7. You have previous criminal convictions; and or 
8. You have overstayed your stay in South Africa.

For how long can I be banned?

For reasons 1-7, a person will not be allowed to enter South Africa or even apply for residency. The ban is for a lifetime. In the case of overstays, Regulation 27 of the Immigration Act provides that overstays that are for a period not exceeding 30 days the person will be banned for 12 months.

If a person overstays for a second period during a 24-month cycle, they will be banned for two years.

Overstaying for more than 30 days will result in the person being banned for five years.

Appealing the Ban

If any of the above applies, one will be banned from South Africa. The most common way to get out of this ban is with an overstay reason, and this decision can be appealed in terms of section 8 of the Act. When a foreigner departs South Africa after the expiry of their visa, they will be issued a declaration of undesirability at the point of departure; this is known as a form 19 in terms of the Immigration Act. This declaration will contain details about the duration of the overstay and the ban period. Important to note is that the declaration also instructs the foreigner in question to submit an overstay appeal to the Department of Home Affairs if they would like to contest the ban from South Africa.

To apply for this appeal, the applicant must write a letter to the Department of Home Affairs and the Director-General stating reasons for overstaying in the country. Some of the reasons for overstaying could include studies, work contracts, pending residency applications, medical reasons, and the visitation of a family member. Proof of the reason must be attached with the letter. These are the most common reasons that Home Affairs will accept, but there are no set factors to consider. The applicant will also have to submit a copy of Form 19 and a copy of their passport.

Conclusion

Despite so many being banned from South Africa, not all is lost; an appeal could be possible. If the reasons are valid as to why they have been overstayed and you have provided proof to the Department of Home Affairs, the Director-General may rule to overturn the decision.

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Domestic violence against men is a phenomenon that is not easy to spot. Any time you hear conversations addressing domestic violence it is about women and children, and rarely about men.

Society the juggernaut, is infuriatingly statuesque and often refuses to understand that men are not excluded from the long adverse arm of domestic abuse. This effigy defines men as strong and  able to take the punch; The echoes of laughter and smears often heard through the corridors of society alluding to the standing that a man could never suffer domestic abuse.  

This article will look at whether the Domestic Violence Act 116 of 1998 offers men the same protection afforded to women and children.

Gender-Based Violence in South Africa

The United Nations High Commissioner for Refugees defines gender-based violence as harmful acts directed at an individual based on their gender. Gender-Based Violence is a profound human rights violation with major social and developmental impacts for survivors of violence, as well as their families, communities and society more broadly. When one mentions gender-based violence, the first thought is violence against women and children. It rarely comes to mind that violence against men has a place on the table. South Africa, like any other society, is not exempted from the plague of gender-based violence. The term gender-based violence is not limited to women.

Domestic Violence Act

Domestic Violence in terms of the Domestic Violence Act 116 of 1998 is defined as:

• 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 behaviour where such conduct causes harm or may cause harm to your health, safety, or well-being.

The preamble to the Domestic Violence Act places much emphasis on affording protection to those most vulnerable in society, being women and children. The literal interpretation of this section of the preamble would suggest that protection is offered to women and children to the exclusion of men. However, the preamble mentions specific and crucial points that rebut this argument. First, it states that it regards the Constitution of South Africa, particularly the right to equality and freedom and security of the person. This right is granted to all persons male or female. Secondly, the preamble emphasises that the Act’s purpose is to afford victims of domestic violence the maximum protection from domestic abuse that the law can provide. It should be noted that it does not single out women or children. 

Effective Purpose of the Act in Society

The priority of society should be to ensure that this beautiful piece of legislation simply works. This means to guard against abuse of the Act with the same vigour as promoting the reporting of every act of domestic violence.

Do the remedies in the Domestic Violence Act exclude men?

No, the practical application for a protection order in terms of the Act confirms that no one irrespective of gender, is excluded from the scope of protection under the Act. It is only required that there is a domestic relationship between the parties.

What are the consequences if a complainant misleads the court in an attempt to abuse the Act in furtherance of personal priorities?

The nature of the application for a protection order places an extreme obligation on the former to uphold absolute good faith when approaching the court with allegations under this banner.

Unfortunately, false accusations of domestic violence are often levelled which yields detrimental consequences on people’s lives.  Form 3 of the application of a protection order warns complainants against lying when they complete Form 2. In the distasteful event a complainant misleads the court in an attempt to abuse the Act, he or she can be charged with perjury. Perjury is a criminal offence of willfully telling an untruth or making a misrepresentation under oath. The Domestic Violence Act provides that the court may make an order as to costs against any party if it is satisfied that such party has acted frivolously, vexatiously or unreasonably.  Is there no reference to a term of imprisonment?

Conclusion

Although the preamble of the Domestic Violence Act specifically mentions women and children and emphasises International Conventions that address ending violence against women and children, men are afforded the same protection under the act.

The post Domestic Violence Against Men: The myth, the truth and the legend appeared first on MG Attorneys.

In South Africa, it is quite typical, that when a principal-agent enters into a contract with the main contractor to complete the necessary work. The contractor would enter into a separate contract with specialised subcontractors to do parts of the job, usually, work like plumbing, tiling, and waterproofers; this contract is known as a subcontracting agreement.  Subcontracting is a construction law trend that is commonly used; it assists the development of Small, Medium, and Micro Enterprises (SMMEs).

Challenges that arise with subcontractors’ agreements.

While this is a great initiative, there are issues such as subcontractors not being paid at all once they have completed their tasks. Additionally, subcontractors have expressed concerns that they are only paid once the project reaches its milestone and a certificate of completion is issued. Should the milestone not be reached for whatever reason, or the certificate not be issued, the main contractor withholds payment. 

Who will be responsible for the debt?

The relationship between a subcontractor and a contractor is regulated by a specific construction contract, and this contract will assist in figuring out who should be held liable. There are different types of contracts used when subcontracting. Nominated subcontractors’ appointments are those nominated by the principal-agent (s) for appointment by the contractor. Domestic subcontractors’ appointments are those selected and employed by the contractor. In Minister of Public Works and Land Affairs v Group Five Building Ltd, the SCA held that in nominated subcontracts there is no privity of contract between the employer and the sub-contractor meaning, a principal-agent cannot be held liable together with the main contractor. This means that the privity of the contract remains with the main contractor.

How can I recover the money that is due to me?

There are different ways to resolve disputes regarding subcontractors’ payments. Subject to the provisions of the contract, the parties may resolve a dispute by mediation, adjudication, arbitration, litigation, or any other mechanism set out by the contract.

• Mediation: A third party facilitates disputes between the parties, and tries to agree on a way to resolve the dispute.
• Adjudication: A third party is appointed to decide regarding the dispute. This adjudication decision is binding on the parties once it is finalised, but the decision can be reviewable in arbitration or through litigation. 
• Arbitration: This is the most common and most recommended way to resolve disputes of this nature. An arbitrator is appointed to decide on the dispute. The decision is binding and is the equivalent of a court order. Although it is often more expensive than proceeding to court, the parties are given more freedom to appoint the arbitrator and decide on the procedure.  It is more efficient and less time consuming than proceeding to court.
• Litigation: The matter proceeds to the relevant court with jurisdiction for an order on the dispute. Litigation can take years to resolve the matter, in comparison to the other ways listed above. 

Conclusion

You can only recover your debt from the main contractor. The principal agent is absolved because of the legal principle of privity of contract; this means that only persons who have concluded are entitled to the rights and obligations arising from the contract. When you need to recover what is due to you use processes set out in the contract if not available use mediation, adjudication, arbitration, and litigation.

The post Can a Subcontractor claim from the employer? appeared first on MG Attorneys.

Getting sued and being served with a summons is a very scary thing for someone to go through, but getting a judgement against you has much worse consequences and is far scarier than getting served with a summons. Judgements have severe consequences on one’s life. An important thing to note is that if you are served with a summons, and do not respond to that summons without notice of intention to defend, a default judgement can be taken on you.

What if Default Judgement is Taken Against You?

Having a default judgement can raise an array of issues. Some of the issues include financial as banks may be concerned about giving you a loan as this judgement on your name poses you as a risk. As such, buying cars and even homes now become problematic with a judgement made on your name, and even rental agencies do credit checks on people signing the lease, and if they find that there is a judgement on the individual signing, the lease can be rejected on the grounds that one has a judgement on their name. Even getting jobs and becoming a director of a company poses you as a risk if a judgement is on your name. 

What is a Default judgement?

The term “default Judgement” refers to a judgement which is granted against a defendant who failed to defend an action brought against them, presumably without contesting the amount or claim. The judgement is then attached and registered against your name at the credit bureau when a court finds that you are liable for a debt or if you have failed to act in accordance with the Uniform Rules of Court.

Can I have a Judgement rescinded (Set aside)?

In South Africa, you are allowed to approach a court, on application, to rescind (set aside) the judgement that has been granted against you. 

There are three grounds on which one may apply for rescission of a default judgement:

• If you have a valid defence to the claim that you did not raise, as a result of having no knowledge of the valid action
• If the judgement debt has been fulfilled within a reasonable time of having knowledge of the judgement; or
• If the party who obtained a judgement against you (judgement creditor) consents to the rescission.

Rule 31(2) (b) of the Uniform Rules of Court provides that a party against whom a default judgement has been granted may, within 20 days after he or she has knowledge of that default judgement, apply to a court to set it aside. In EH Hassim Hardware (Pty) Ltd v Fab Tanks CC the SCA stated that an applicant for rescission of judgement needs to show good cause by

(a) Giving a reasonable explanation for the default; 

(b) Showing that their application for rescission was made bona fide (in good faith) and not made merely with the intention to delay the plaintiff’s claim; 

(c) Showing that they have a bona fide defence to the plaintiff’s claim, which on face value has some prospect of success.

Conclusion

A default judgement can be made against you with or without your knowledge. It is important that as a consumer you do not take this lightly because of the implications that come with it. Having a judgement on your name is a double-edged sword which shows the extreme lengths and consequences that judgements have on one’s name. As a consumer, you need to take precautionary measures and follow through with the summons issued to you. Do not ignore it, go to an attorney who can assist you. You do not want your finances controlled by a curator after being declared insolvent.

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