Month: February 2015

Annulment of a marriage

A1BlogConsent is an essential element of a valid marriage and the parties to a marriage must confirm before the marriage officer during a civil ceremony that they voluntarily consent to marry each other.[1] There are certain circumstances where it can be said that consensus was not present, and this will be discussed below.

Six months after John marries Laura they decide that they want to start a family. John finds out from the doctors that he is sterile and cannot have children. Laura is distraught and contacts her attorney, saying that she would never have married John if she had known that he could not have children.

Laura’s attorney explains to her the circumstances in which consensus will either be lacking or materially deficient, in which case the marriage can be annulled (set aside).

Firstly, a material mistake will result in a lack of consensus. A material mistake is limited to where there is a mistake as to the identity of your spouse or a mistake regarding the actual act of marriage in that you did not understand that the ceremony in which you took part resulted in marriage with the other party. In these circumstances there is uncertainty as to whether the marriage never came into existence or if it can be set aside. One may also make mistakes regarding the personal characteristics of your spouse. This may only be a ground on which the validity of the marriage can be challenged if these are material characteristics. The decision whether a mistake regarding a personal characteristic is material or not rests with the Court.[2]

Secondly, a misrepresentation by your spouse may justify the setting aside of a marriage if that misrepresentation relates to a material aspect of the marriage. In the scenario above, if John was aware of the fact that he was sterile before entering into the marriage with Laura, then Laura could attempt to prove that she was misled and state that if she was aware of John’s sterility, she would never have married him. However, if John was unaware that he was sterile, this is not a sufficient ground on which to set a marriage aside.[3]

Thirdly, if one of the parties was unduly influenced or placed under duress to marry the other party by any person including but not limited to the party to which they have been married, then there is no consensus and the marriage can be set aside.[4]

Fourthly, impotence, being the inability to have sexual intercourse, may be a valid ground for setting aside a marriage, but this will not be so if it was reasonably foreseeable at the time that the marriage was entered into that sexual intercourse wouldn’t take place based on factors such as age or illness.[5]

Fifthly, if the scenario above was altered to read that Laura was pregnant with another man’s baby at the time that she married John then he could apply to have the marriage set aside on the basis that this state of affairs would most likely result in an unhappy marriage. He may only make this application if he was unaware of the pregnancy at the time that they were married and if he has not waived his right to have the marriage annulled.[6]

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.

Bibliography:

  • Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th, 2009, 92 – 94.
  • Heaton J, South African Family Law 3rd, 2010, 37.
  • Marriage Act, 25 of 1961.

[1] Section 30(1) of the Marriage Act, 25 of 1961.

[2] Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed. (2009) 92.

[3] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[4] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[5] Heaton J, South African Family Law, 3rd ed. (2010) 38; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

[6] Heaton J, South African Family Law 3rd ed. (2010) 37; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

Road cyclists vs. motorists

  1. A3BlogThe popularity of road cycling as a competitive sport and a form of transportation is on the rise. This naturally leads to major safety concerns and serious accidents among both groups of road users.

Both the National Road Traffic Act[1] and the Western Cape Provincial Road Traffic Act[2] regulate the rights of and rules for pedal cyclists and motor vehicle drivers on roads in the Republic of South Africa. The National Road Traffic Act has specific regulations pertaining to cycling safety and every cyclist should be alert to these regulations. Regulation 3113 states as follows:

    1. No person shall ride a pedal cycle on a public road unless he or she is seated astride on the saddle of such pedal cycle.
  1. Persons riding pedal cycles on a public road shall ride in single file except in the course of overtaking another pedal cycle, and two or more persons riding pedal cycles shall not overtake another vehicle at the same time.
  1.  No person riding or seated on a pedal cycle on a public road shall take hold of any other vehicle in motion.
  1. No person riding a pedal cycle on a public road shall deliberately cause such pedal cycle to swerve from side to side.
  1. No person riding a pedal cycle on a public road shall carry thereon any person, animal or object which obstructs his or her view or which prevents him or her from exercising complete control over the movements of such pedal cycle.
  1. A person riding a pedal cycle on a public road shall do so with at least one hand on the handle bars of such pedal cycle.
  1. Whenever a portion of a public road has been set aside for use by persons riding pedal cycles, no person shall ride a pedal cycle on any other portion of such road.
  1. A person riding a pedal cycle on a public road or a portion of a public road set aside for use by persons riding pedal cycles, shall do so in such manner that all the wheels of such pedal cycle are in contact with the surface of the road at all times.

The Western Cape Provincial Road Traffic Act was passed on the 29th November 2012 and this Act has implications for both pedal cyclists and motor vehicle drivers. The Act empowers the Provincial Minister of Transport to regulate4 certain matters to increase road safety in the Province. Amongst others, regulations requiring all vehicles overtaking cyclists to ensure that there is a safe distance of at least 1.5 metres between them before passing, and law enforcement actions against cyclists who do not ride in single file, or who fail to stop at red traffic lights or stop streets were enacted.

Cyclists have the right to expect motor vehicles to overtake them safely and be on the look-out for them at intersections. The Road Traffic Act is clear where it states that drivers must take other road users into account in whatever they do. Cyclists also have the right to the left-hand side of the road (not the extreme edge of the left-hand side). We tend to forget that there are cyclists around us who are also using the roads as a means of transport. Apart from the recently built cycle-lanes in Cape Town, we do not have dedicated lanes in South Africa for cyclists to use. This means that every day cyclists are fighting for road space amongst often aggressive and ignorant drivers, according to the Automobile Association of South Africa (AA).

While the law states that cyclists must wear protective headgear while riding a bicycle, for many this is a cost that they simply cannot afford, making them almost invisible to the drivers on the road.

Therefore, as a driver, ask yourself what you can do to avoid colliding with a cyclist. The AA provides some safety tips for drivers:

      • Yield to cyclists, especially at intersections and circles.
      • Check your blind spots and make sure the way is clear before changing lanes or direction.
      • Do not drive, stop or park in a bicycle lane.
      • Give cyclists enough room when overtaking – at least 1.5 metres.

Changing the behaviour of drivers will assist in the fight to stop cyclist crashes and deaths on our roads. However, cyclists also have to do their part by following the rules and making sure they are visible. Here are some safety tips for cyclists on the road:

      • Obey the traffic signs and rules.
      • Keep left and keep at least one metre clear of the pavement and parked cars.
      • Ride with the traffic and not against it.
      • Be visible – wear reflective clothing and a bright-coloured helmet at all times.
      • Use lights at night – a white headlight and a red rear lamp.
      • Use hand signals when turning or changing lanes.
      • Always cycle in single file.

In order to reduce the level of carnage on our roads we need to work together as road users, and this means that both cyclists and drivers need to follow the rules. The first step in doing this is to become aware of the rules and regulations in place to protect and serve the interests of both groups of road users.

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

1 93 of 1996

26 of 2012

3 National Road Traffic Regulations, 2000. Government notice R225 in Government Gazette 20963, dated 17 March 2000. Effective as from 1 August 2000 (page 340/389).

4 Dec 6, 2013 – Province Western Cape: Provincial Gazette 7208.

Bibliography:

    1. aa.co.za
    2. arrivealive.co.za
    3. acts.co.za/national-road-traffic-act-1996
    4. polity.org.za

What is meant by real security?

A4BlogReal security means that, on the basis of a creditor’s right against the debtor (principal debt), a creditor acquires a limited real right in the property of the debtor as security for the payment of the creditor’s right (principal debt) by the debtor.

Real security differs from personal security in that a creditor does not acquire a limited real right in the property of the debtor in the case of personal security, but only acquires a creditor’s right against a third party as security for the payment of the principal debt by the debtor. Such a third party is normally surety of the debtor.

A requirement for real security is the existence of a valid and enforceable principal debt. The real security is accessory to the principal debt, in other words the real security is terminated automatically if the principal debt is paid in full.

If the object of security is moveable property, real security can be in the form of either pledge or notarial bond. In the case of pledge the object of pledge (corporeal or incorporeal moveable property) must be delivered by the pledgor (debtor) to the pledgee (creditor). Physical control of the pledge object is a requirement for the establishment and continuation of a limited real security right to the security object. The pledgee has the obligation to maintain the pledged property within reason and, on termination, to return the property to the pledgor. A notarial bond can be registered in respect of specified, corporeal moveable property of the debtor (mortgagor) in favour of the creditor (mortgagee) in the deeds registry. After registration of this bond, the mortgagee acquires a limited real right to the encumbered property without delivery thereof to the mortgagee.

Immoveable property of the debtor serves as the object of security in that a mortgage is granted by the debtor (mortgagor) to the creditor (mortgagee) and registered in the deeds registry. A mortgage is a liquid document which grants the mortgagee a limited real right in respect of the immoveable property of the mortgagee without the physical control of the property being passed to the mortgagee. More than one mortgage can be registered over the same immoveable property at the same time. Priority is given, in this case, to mortgagees in the order that the mortgages were registered (prior in tempore, prior in iure).

The pledge of the mortgagee (creditor) can, if the principal debt is not paid in full by the mortgagor or pledgor (debtor), have the security object sold in execution and is entitled to the proceeds of the sale in execution for payment of the principal debt. In the case of insolvency of the pledgor or mortgagor, the pledge or mortgagee acquires a preferent claim to the proceeds of the sale of the security object.

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.

How important is it to read legal pleadings and/or notices?

A2BlogOften people only become aware of judgements reflecting on their credit records when trying to apply for loans, cellphone contracts, etc.

However, what many of them do not know, is that it is most likely due to their own negligence that they have these judgements against them.

A summons is a document that informs a defendant that he or she is being sued and asserts the jurisdiction of the court to hear and determine the case. A summons can be served for many reasons which include divorce proceedings, traffic fines, outstanding fees, etc.

A simple summons sets out very briefly the details of the case. A combined summons does not set out the details or reasons as to why the action is being instituted, and such details can be found in the particulars of claim. It is important to take notice of the fine print on the summons. This is where you will find the information regarding when and where you should file your Notice of Intention to Defend, should you wish to defend the matter. An attorney usually drafts the notice and files it at court, however, it is not uncommon for people to defend such actions themselves. If you wish to defend the matter yourself it is important to serve it on the opposing attorneys (these details are on the summons) and file it at court.

With regards to any normal summons the time period to file the Notice of Intention to Defend is 10 (ten) days and 20 (twenty) days to file the opposing papers. If the defendant resides or is located in a 160 km radius outside the court, the defendant then has 21 (twenty one) days to file their Notice of Intention to Defend and 20 (twenty) days to file their opposing papers.

Once the ten or twenty days have passed and no Notice of Intention to Defend has been filed, the attorneys will immediately apply for Default Judgement. This may result in a judgement against your name. Once a Judge/Magistrate has granted Default Judgement, a Warrant of Execution can be issued in order to attach property and/or money for the amount as stated on the summons. If the Sheriff finds that there is no property to attach in order to obtain the money, the attorneys will go ahead with a Section 65A (1) Application. This Application requires the debtor to present their income and expenses to the court and provide an amount which can be paid off monthly in order to settle their debt.

A judgement will only be removed from your record once a rescission order is granted and/or proof is provided that the amount cited on the summons has been paid in full. If the amount has been paid in full, you can contact Transunion directly and get the judgement removed for free once proof of payment has been sent.

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

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