Monthly Archives: March 2017

The Consumer Protection Act and your rights

The South African Consumer Protection Act, No. 68 of 2008 was signed on 24 April 2009 and the purpose of the Act is to protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace and also to give effect to internationally recognised consumer rights. The Consumer Protection Act define a consumer as any person to whom goods and services are marketed, who is a user of the supplier’s goods, enters into a transaction with the supplier or service provider of any services and products.

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.

The Consumer Protection Act:

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

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.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The validity of tax invoices – it is your responsibility

The audits of Value-Added Tax (VAT) returns by the South African Revenue Service (SARS), have increased the focus on the validity of tax invoices for the purposes of VAT.

A VAT vendor submitting VAT returns is responsible for ensuring that all invoices included in the returns comply with the relevant legislation. If valid tax invoices cannot be provided at the time of a VAT audit, the vendor may lose up to 100% of the input tax being claimed on the invoice, even if an amended valid invoice can be provided subsequent to the audit. Furthermore, serious penalties, interest and other consequences may be imposed on the VAT vendor for errors, intentional omissions and fraud.

The requirements

Section 20 of the Value-Added Tax Act, no 89 of 1991, together with the VAT404 Guide for Vendors as updated in March 2012, sets out the requirements for a valid tax invoice.

A VAT vendor must issue a tax invoice within 21 days of the supply having been made where the consideration for the supply exceeds R50, whether the purchaser has requested this or not. If the consideration for the supply is R50 or less, a tax invoice is not required. However, a document such as a till slip or sales docket indicating the VAT charged by the supplier, will be required to verify the input tax.

The requirements for tax invoices of which the consideration or taxable supply is more than R5 000 are:

  1. the words “tax invoice” should be displayed;
  2. name, physical address and VAT registration number of the supplier name, physical; address and VAT registration number of the recipient;
  3. original serial number of the tax invoice;
  4. the date of issue of the tax invoice;
  5. full and proper description of the goods sold and / or services rendered;
  6. quantity or volume of goods and / or services supplied; and
  7. total amount of the invoice and VAT amount in South African currency (except for certain zero-rated supplies).

The requirements for tax invoices of less than R5 000 are:

  1. the words “tax invoice” should be displayed;
  2. name, physical address and VAT registration number of the supplier;
  3. original serial number of the tax invoice;
  4. the date of issue of the tax invoice;
  5. full and proper description of the goods sold and / or services rendered;
  6. total amount of the invoice and VAT amount in South African currency (except for certain zero-rated supplies).

Second-hand goods

In the case of second-hand goods purchased from a non-vendor, the purchaser has to record the following information:

  1. name, address and identity number of the supplier, confirmed by the person’s identity document or passport. (If the value of the supply is equal to or greater than R1 000, a copy of this document must be retained by the purchaser. If the non-vendor is a juristic person, a letterhead or similar document stating the name and registration number of the juristic person is required);
  2. date of acquisition;
  3. quantity or volume of goods;
  4. description of the goods;
  5. total consideration paid for the supply; and
  6. declaration by the supplier stating that the supply is not a taxable supply.

Conclusion

If a vendor fails to deduct an input tax in respect of a particular tax period, that input tax may be deducted in a later tax period, but limited to a period of five years from the date that the particular supply was made. However, when a vendor becomes aware of an output tax not declared in the relevant period, a corrected VAT return for that specific period should be submitted. It is not acceptable to declare the output tax in the next period and SARS may impose penalties and interest on the output VAT omitted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What is the Promotion of Administrative Justice Act (PAJA)?

The PAJA is the law passed to “give effect” to the right to just administrative action in the Bill of Rights. This says everyone has the right:

●  To fair, lawful and reasonable administrative action; and
●  To reasons for administrative action that affects them negatively.

What is administrative action?

Any decision the administration takes that affects people’s rights is an administrative action. The administration is made up of:

  • All government departments;
  • The police and army; and
  • Parastatals, like ESKOM, Telkom and the SABC.

Why do I need the PAJA?

The PAJA gives you a chance to tell your side of the story before any decision is taken. Once a decision is taken, it lets you find out why the decision went against you. In this way, the PAJA makes sure you know why the administration has done what it has. It also makes sure that decisions are taken properly. Lastly, it makes sure you can challenge decisions that were not taken properly.

What should I expect when I apply for something?

You can now expect to be:

  • Told what decision is being planned before it is taken;
  • Allowed to tell your side of the story before a decision is made;
  • Told what the decision is and of your right to internal appeal or review;
  • Told that you have the right to request reasons;
  • Given proper written reasons for the decision; and
  • Able to challenge the decision in court.

When can I request reasons?

You can request reasons for any decision that negatively affects your rights. Sometimes, these reasons will be given without you having to request them. If not, you must request them within 90 days of finding out the decision.

What if I am still not satisfied?

Some departments give you an internal appeal. For example, the Department of Home Affairs has an Appeal Board. If someone applies for asylum seeker status and is refused, they can appeal to this Board.

You must use any internal appeal before taking any other action. The department must tell you how to do this and how long you have to make the appeal.

If there is no internal appeal procedure, or if you have used it and are still not satisfied, you can ask a court to review the decision. This must be done:

  • Within 6 months of any internal appeal having been decided.
  •  (Where there is no internal appeal) within 6 months of finding out the decision

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Does your medical certificate justify your sick leave?

This article deals with medical certificates and whether or not an employee is justified in taking the day off for an “illness”.

Angela informed her employer on Monday morning that she would be staying at home as she felt very sick and was unable to do her work in her condition. Angela only decided on Wednesday that she would go to the doctor because she knew she would be returning to work on Thursday, and therefore needed a medical certificate from the doctor so that her work would not deduct the money from her salary. However, Angela had a surprise waiting for her.

What should a medical certificate contain?

In terms of Rule 15(1) of the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa, a practitioner will only grant a certificate of illness if the certificate contains the following information:

  • the name, address and qualification of the practitioner;
  • the name of the patient;
  • the employment number of the patient (if applicable);
  • the date and time of the examination;
  • whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
  • a description of the illness, disorder or malady in layman’s terminology, with the informed consent of the patient, provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
  • whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
  • the exact period of recommended sick leave;
  • the date of issuing of the certificate of illness; and
  • a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters.

If pre-printed stationery is used, a practitioner will delete words which are irrelevant. A practitioner will issue a brief factual report to a patient where such a patient requires information concerning himself/herself.

The above is largely self-explanatory. Sub rule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes to the doctor and informs the doctor that he has had flu since Monday and requires a sick note. The doctor is then required to write in the sick note, “I was informed by the patient that …”

What should the employer do?

An employer does not have to accept this as a genuine illness. The doctor is only telling you that the patient says he was ill. The doctor is not certifying that he made an examination and is able to confirm the illness. You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the doctor when he falls ill and not after he has recovered from the alleged illness.

Unfortunately for Angela, her employer recently read an article informing him of his rights to deduct money from her salary because she failed to come to work on Monday and Tuesday and only went to see the doctor on Wednesday, and there was no way of establishing that she definitely was ill on those days.

Conclusion

In light of the above it would be best for employees to see the doctor on the same day that they feel ill, and for employers to insist on seeing the medical certificate and examining it properly.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Should I use a protection order or a harassment order?

There are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a protection order or apply for a harassment order. However, many people do not know the difference between the two and which order would suit their situation.

What is a protection order?

A protection order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a protection order:

1. Need to show a pattern of abuse.
2. It has to be a form of domestic violence, which includes:

  • Physical violence
  • Sexual violence
  • Financial violence
  • Emotional/verbal violence

3. The violence needs to be directed at the person who wants to make the application.

A protection order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a protection order and thereafter a return date is set. At the return date the applicant can change their mind and ask that the order be removed. If not, the order is granted, and it is binding for life. If the respondent breaches the protection order, he/she may receive up to five years’ imprisonment. If the applicant applies for a protection order under false pretences the applicant may receive up to two years’ imprisonment.

The application for a protection order is an ex-parte application, which means that the application can be made without having the respondent at court. This can cause problems in the instance where the respondent is innocent, but does not have a chance to defend himself/herself.

What is a harassment order?

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a harassment order. The following is important to know about harassment orders:

1. No pattern is needed, and a first offence can be sufficient for a Harassment Order.
2. No relationship is required, and it can be against someone you don’t even know.
3. No violence is required.
4. Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a harassment order without knowing who it is against, the court has the power to order a police official to investigate the matter. The application for a harassment order takes place in open court, which means that it is not private. This can sometimes prevent victims from making the application. Once a harassment order is granted, it is binding for five years. If the applicant wants to withdraw the order, the court must be satisfied that the conditions have changed. Breach of a harassment order can result in five years’ imprisonment, which is the same punishment for applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Claiming maintenance from parents living in foreign countries

A major concern many parents have revolves around the existence of maintenance orders from a South African court which requires enforcement against a non-compliant person who resides in a foreign country.

South African law allows its citizens to claim maintenance from a parent living in a foreign country. The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 is a piece of legislation which regulates foreign maintenance processes. To obtain maintenance for minor children in any foreign country it is advisable that an order for the maintenance of the minor children has first been made by a South African court.

It is important to note that not all foreign countries are recognised under the Reciprocal Enforcement of Orders Act. Chief Directorate: International Legal Relations in the Department of Justice and Constitutional Development (DoJ&CD) has a list of proclaimed countries. This means such countries have a special arrangement with South Africa whereby maintenance orders granted in one country can be enforced in another.

The following documents where applicable must be transmitted to Head Office from our courts:

  • four certified copies of the provisional court order;
  • an affidavit by the complainant or an officer of the court as to the amount of arrears due under the order;
  • the deposition or evidence of the complainant;
  • physical, and or working address of the defendant;
  • a photograph and description of the defendant;
  • the original exhibits (marriage certificate, birth certificate, photographs etc.) referred to in the complaint’s deposition or evidence duly endorsed as prescribed/affidavit;
  • three certified copies of the documents referred to in (b) and (c) above and in the event of the High Court, four copies as well as an additional copy of the court are required.

Countries recognised under the Reciprocal Enforcement of Orders Act:
Australia, Canada, Cocoa (Keeling) Islands, Cyprus, Fiji, Germany, Guernsey (Bailiwick of Hong Kong), Isle of Jersey, Isle of Man, Kenya, Lesotho, Malawi, Mauritius, Namibia, New Zealand, Nigeria, Norfolk Island, Sarawak, Singapore, St Helena, Swaziland, United Kingdom, United States of America, Zambia and Zimbabwe.

If the foreign country in question does not have a reciprocal enforcement agreement with the Republic, the second option is to launch formal proceedings in the courts of the foreign country based on an already existing maintenance order. This option in most cases, tends to be an expensive process, takes an indeterminable amount of time and doesn’t always render favourable results.

References:
http://www.justice.gov.za/docs/articles/2009_foreign-maintenance.html
http://mclarens.co.za/maintenance-children-foreign-countries/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When international marriage meets the law

A South Africa citizen decides that he is going to study in England after leaving school. During this time abroad he meets the love of his life, who happens to be a British citizen. Both parties decide they want to marry each other and are now unsure if the marriage will be valid once they return back to South Africa.

What law governs marriage?

Men and women of different nationalities may fall in love and marry in the country where they happen to reside. Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnized. This is based on the common law doctrine of the law of the country were the marriage was solemnized (lex loci celebrationis).

This rule is also subject to the fraud of the law (fraus legis) doctrine that will prevent parties from deliberately solemnizing their marriage elsewhere to escape some essential requirements of the law of the place of a party’s dwelling house (lex domicilii).

Evading the law

Kassim v Ghumran & another 1981 Zimbabwe LR 22, may be considered more fully to illustrate the principle of evasion. Here Ghumran and Kassim had eloped from Zimbabwe to Malawi in order to marry. Kassim was only 15 years old and the consent of her parents, which was not obtained, was required for her marriage under the law of Zimbabwe. Kassim’s father sought an order declaring that the Malawian Marriage is void. The court held that where one or both parties were domiciled in the area of the court and had their marriage deliberately solemnized elsewhere to escape an essential requirement of the lex domicilii. Therefore, they deliberately evaded the law.

The principle of public policy

The last exception to the lex loci celebrationis is the principle of public policy. The marriage will be against public policy if it offends fundamental moral principles of that society. Since the marriage relationship is one of the fundamental institutions of our society, it follows, none the less, that public policy will raise its head here. It does so primarily in two broad areas; marriages tainted by incest, want of age, or lack of consent and polygamous marriages. The consensus seems to be that the union of siblings (whether of half or full blood) and the union of any blood relatives in the direct line will be against public policy (contra bonis mores).

Conclusion

Their marriage will be valid in South Africa if they complied with the above-mentioned international private law principles and the marriage was legally concluded in accordance with the laws of England. It is also important to note that the legal consequences of the marriage will be governed by different international private law principles and the validity of the marriage will be determined according to the above-mentioned principles.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

How to apply for spousal maintenance?

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

  1. Identity document of the complainant.
  2. Complainant’s contact details, such as telephone numbers and home and work addresses.
  3. If maintenance for a child is claimed, the birth certificate of that child.
  4. If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
  5. A full list of expenses and any proof of same, such as receipts.
  6. The complainant’s payslip and proof of any other income.
  7. As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

  1. The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
  2. The defendant must take any proof of his/her income and expenses to the informal enquiry.
  3. The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
  4. If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
  5. If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
  6. The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
  7. The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
  8. If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
  9. It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

Reference

Justice.co.za
Legalwise.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)