Month: June 2015

What is the role of the family advocate

A2BThe Family Advocate has many duties but in the context of Divorce Law, they are mostly consulted for making sure that all Parenting Plans and divorce Consent Papers are in the best interest of any minor children involved. The public can, however, also have access to the Family Advocate and it is important to note that they offer a free service.

The roles of the Family Advocate include the following: to provide education to family members and to others involved in the systems serving the family and youth; to help identify the strengths and needs of families; to be a mediator between the system and the family by helping to educate professionals on the strengths and needs of the family; to help family members understand the different roles of the agencies involved in the system and how they may affect the family and assist families in identifying and utilizing necessary services.

A Family Advocate helps state and local agencies and systems adopt more strengths-based and family-driven programs, policies, and services. The focus is to better meet the needs of families and their youth who have mental illness, co-occurring disorders or substance use disorders and improve outcomes for all, including families, youth, and the agencies they utilize.

A Family Advocate also has the authority to draft Parenting Plans at no cost which will help provide the minor child with a stable and suitable schedule between the two parents. A Family Advocate cannot however provide for a maintenance amount as this falls under the jurisdiction of the maintenance court. Should a parent feel like they are not sure of their rights or responsibilities towards their minor child, the Family Advocate can be approached in order to arrange a meeting between the two parties to mediate the rights and responsibilities between the two parties. This process is also at no cost, however should one of the parties deny the meeting, the Family Advocate has no authority to subpoena them to attend the meeting.

The Family Advocate is a perfect remedy for parents who have their child’s best interest at heart and who aim to provide a stable environment for the child when both parents are no longer together.

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

Sport Injuries: Who is liable?

A3BContact sports often lead to the players thereof being seriously injured. Can anyone be held liable for these injuries or are the players taking an inherent risk when participating in these sports? Case law has established some important principles when dealing with this issue. Make sure you know what you are allowed and not allowed to do on the field of play.

Are you in fact consenting to an injury when participating in a dangerous sport? The issue was considered in the 2012 Supreme Court of Appeal-case, Roux v Hattingh. In this case the appellant seriously injured the respondent while performing an illegal and dangerous scrumming manoeuvre, referred to as a jack-knife.

Appeal Court Judge Plasket ruled in favour of the respondent. It was held that the Appellant purposefully injured the Respondent and his actions were found to be wrongful. The legal principle of Volenti Non Fit Iniuria, or the consent to potential damage, would be sufficient to protect a person that injures another in a sporting match, but only in the usual and reasonable course of the specific game.

First, the “jack-knife” manoeuvre executed by Alex was in contravention of the rules of the game. It was also contrary to the spirit and conventions of the game. Secondly, because it had a code name, the manoeuvre must have been pre-planned and it was consequently also executed deliberately. Thirdly, while one of its objects may have been to gain an advantage in the scrum, and another may have been to intimidate the opposition, particularly Ryan, it was also extremely dangerous.”[1]

Plasket AJ continues further:

“Because this conduct amounted to such a serious violation of the rules; it is not normally associated with the game of rugby and is extremely dangerous. It would not have constituted conduct which rugby players would accept as part and parcel of the normal risks.”[2]

It is clear from the AJ Plasket’s judgment that the main issue to be considered when evaluating whether a person should be held liable for an injury caused in a contact sport, should be whether the conduct should be considered to be normal for the specific game being played.

Appeal Judge Brand, in a concurring judgment expands the issue further:

“I believe that conduct which constitutes a flagrant contravention of the rules of rugby and which is aimed at causing serious injury or which is accompanied by full awareness that serious injury may ensue, will be regarded as wrongful and hence attract legal liability for the resulting harm”.[3]

It is stated that when an action is of such a nature that it is a blatant breach of the laws of a game, the player reconciles himself with the contravention of such law and the possible consequences and deliberately goes ahead with such action, the player should be held liable. It is important that the meaning behind this passage is not that any injury that occurs as a result of a broken rule of the game, should be punished by law, but only in cases where the infringement is serious and obvious enough to warrant such action.

This would place an overly onerous burden on a person to not contravene any rule of the game to avoid punishment. Imagine a rugby player being held delictually liable for injuring an opposing player when going of his feet a ruck, a common mistake in rugby that should not lead to legal liability. The reasoning behind the judgment in the Roux-case is simply that where a player deliberately and flagrantly breaks a rule of the game and knows that such contravention will or might cause serious injury to an opposing player, he or she can be held delictually liable.

There is therefore no need to alter the way in which you play a game because of the fear of legal consequences. However, be aware that malicious actions on the field of play, may lead to serious repercussions.

Bibliography

Articles

Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72

Cases

Roux v Hattingh 2012 (6) SA 428 (SCA)

[1] Roux v Hattingh 2012 (6) SA 428 (SCA) at Par27

[2] Roux v Hattingh 2012 (6) SA 428 (SCA) at Par28

[3] Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72 78

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

When is a tenant an illegal occupant?

A4BWhere the Contract of Lease is breached in any way by the tenant and he or she after receiving notice thereof has not remedied such a breach within the period agreed upon, then the landlord may cancel the contract. The tenant will be found to be an illegal occupier in this instance.

Where a tenant fails to perform as agreed upon in his Lease agreement, he will be found to be in breach of that agreement. An example of this is a failure to pay rent timeously or at all. The landlord must notify the tenant in writing of his decision to terminate the contract by means of a letter of cancellation, allowing the tenant a reasonable period, or such timeframe as agreed upon in terms of such a lease, to vacate the property.

If the tenant chooses to ignore the notice of cancellation of the lease agreement by remaining on the property and continuing to use and enjoy it, the tenant will be regarded as an illegal occupier of the property. The same applies if the tenant continues to occupy the property after the expiration of the initial lease period. An illegal occupier may be evicted from the rented property by the landlord or owner. This will be done at a Magistrate’s or High Court and for that the services of a lawyer will be required.

There is no longer a Common Law right to evict someone. Instead the owner or landlord must follow the procedures and provisions of the Prevention of Illegal Eviction and Unlawful Occupation of land Act 19 of 1998 (hereinafter referred to as the “PIE Act”). The tenant must be notified of the pending action, by means of a Notice of Intention to Evict and this must be done at least 14 days before the date of the court hearing. This notice must also be sent to the respective Municipality involved.

On the date of the hearing, the court will consider factors such as whether the person is an unlawful occupier, whether the owner has reasonable grounds for eviction and alternative accommodation available to the tenant. It is now considered a criminal offence to evict someone without a court order to that effect. Constructive eviction, for instance, where a landlord cuts the water or electricity supply to the property in order to “drive” the tenants out, is a criminal offence.

The type of action or application that your legal representative will bring will vary depending on the facts and circumstances of the matter. Such actions or applications can be heard in the Magistrate’s or High Court, depending on the value of the occupation and not the leased property value. The lease agreement may also have a clause embodied in it where the parties agree to a particular court’s jurisdiction, where upon that will be followed. If the court proceedings are successful a Warrant of Ejectment may be issued, whereupon the owner or landlord may proceed with the eviction of the illegal occupier.

Once the owner or the proprietor of the leased property has followed all the prescribed procedures as laid out in the PIE Act and they have established that their tenant is considered an unlawful occupier then they may proceed with the above-mentioned steps in order to evict them from their property.

An unlawful occupier may be removed from the premises upon the instruction of an Eviction Order / Warrant of Eviction with the assistance of the Sheriff of the respective court at a minimal fee. The steps laid out in the PIE Act are simple to understand and follow allowing a transparent and fair chance to both the landlord and the tenant in these difficult situations.

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

The Credit agreement

A1BIf you default on a credit agreement and action is taken against you by the credit provider, you still have time, according to Section 129(3)(b) read with 129(3)(a) and S129(4) of the National Credit Act (“NCA”)[1] as well as the case of Firstrand Bank Limited v Nomsa Nkata[2] to re-instate the credit agreement until the goods have been sold in execution.

Prior to the National Credit Act coming into force, the position regarding the right of a consumer to re-instate a credit agreement was determined by the principle of redemption in common law. According to this principle, a consumer would be able to re-instate the credit agreement by paying the credit provider the full amount of the debt, together with ‘default charges’ and reasonable costs of enforcing the agreement.  According to the National Credit Act, ownership and possession of an item or premises can be redeemed by paying only the amount overdue at that date, together with charges and costs.

The issue, however, is at which point it becomes too late to pay the amount overdue in the execution process. This issue was addressed in the recent case of FirstRand Bank Limited v Nomsa Nkata.[3] Section 129(3) and (4) of the NCA states the following:

  1. Subject to subsection (4), a consumer may:
  • at any time before the credit provider has cancelled the agreement re-instate a credit agreement that is in default by paying to the credit provider all amounts that are overdue, together with the credit provider’s permitted default charges and reasonable costs of enforcing the agreement up to the time of re-instatement; and
  • after complying with paragraph (a), may resume possession of any property that had been repossessed by the credit provider pursuant to an attachment order.
  1. A consumer may not re-instate a credit agreement after
  • The sale of any property pursuant to:
    • an attachment order; or
    • surrender of property in terms of section 127;
    • The execution of any other court order enforcing that agreement; or
  • The termination thereof in accordance with section 123.”

The Supreme Court of Appeal found in the FirstRand Bank Limited case that in terms of both the common law as well as the NCA, “the Rubicon has been, and remains the sale in execution.” This means that at any point up until the time of the sale in execution, the consumer can put a halt to the execution proceedings and reinstate the agreement by paying the amount overdue, together with charges and costs.

The reason that the above provision was placed in the NCA was to make provision for the fact that many consumers borrow money over an extended period in order to finance the acquisition of large purchases such as a home or a motor vehicle. It was also noted in the above judgment that less affluent citizens may make use of extended credit to purchase household items and appliances. Therefore the NCA assists consumers in providing them with the option of paying the overdue amount rather than having to pay the entire amount of the debt.

The Court established in the FirstRand Bank Limited case that Section 129(4) (b) can only be used before the sale has taken place and not thereafter. Once the sale has taken place the credit agreement cannot be re-instated between the consumer and the credit provider. Should you find yourself in the temporary position of not being able to pay the monthly instalments of your credit agreement but are able to pay those instalments at a later stage, and to not want to cancel the credit agreement, then it is imperative that you pay the money which is overdue to the Credit Provider prior to any sale in execution as you will not be able to re-instate the agreement thereafter.

Bibliography

  • National Credit Act, 34 of 2005
  • Firstrand Bank Limited v Nomsa Nkata, (213/14) [2015] ZASCA 44 (26 March 2015) 

[1] 34 of 2005

[2] (213/14) [2015] ZASCA 44(26 March 2015)

[3] (213/14) [2015] ZASCA 44(26 March 2015)

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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