Month: June 2016

WHAT HAPPENS AFTER YOUR HOUSE HAS BEEN BURNT TO THE GROUND?

A4There are definite steps that a homeowner will need to take if he ever has the traumatic experience of having his house burnt to the ground.

Over and above all the emotional and financial tension it causes in a person and his family, there will be several steps that a homeowner will need to take before the problems accompanying such an experience will be resolved.

The first step that needs to be taken by the homeowner is to report the matter to the nearest police station. The reason for this is twofold. Firstly, by reporting the matter the homeowner will receive the necessary case number as required by most insurance companies. Secondly, the conduct of the third party may turn out to be a crime, for example, arson. Thereafter the complaint will be investigated by the police and handed over to the prosecuting authority that will decide if the third party should be prosecuted or not.

The second step is to report the matter to the insurance company together with the abovementioned case number. Thereafter the insurance company will investigate the claim and decide whether it is going to accept or reject the claim. The insurance policy will determine the ambit of the insurance company’s discretion in deciding whether to accept or reject the insured’s claim. The reason for this is that the insurance policy will determine the rights and obligations between the insurance company and the insured. If the insurance company decides to reject the insured’s claim the insured will have two further options at his disposal. The insured will be able to take the matter to the ombudsman for determination, or he may dispute the matter in a civil court based on breach of contract by the insurance company.

The third step will be to indemnify the insured if the claim is accepted by the insurance company. The amount that the insurance will pay out to the insured will once again be determined by the terms and conditions of the insurance policy. If the insurance company rejects the insured’s claim or if the insured decides not to claim from the insurance company, then the insured will be able to institute action against the third party if he can prove that the house was burned down as a result of the intentional or negligent conduct or omission by the third party or, alternatively, that the house was burned down as a result of a breach of a contractual obligation between the homeowner and the third party, had a contract been in place.

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 END OF AN ERA, THE BEGINNING OF AN EDUCATION?

A3Manenberg, a town full of uneducated school children, stranded teachers, guns, drugs, daily shootings and a deficiency of policemen.

This is what Manenberg now looks like after two disagreeing gangs, The Americans and Hard Livings, have taken over and used the area as a battlefield. On the 12th of August 2013, 16 schools had to close their doors after learners got caught in the crossfire between the two mobs. Teachers and school busses could not enter the school grounds as it was too unsafe for them and they were forced to retreat from the violent scene immediately. Three people have already been shot, all this happening on the same road in Manenberg in a matter of two days, with the most recent incident involving a woman who was wounded in both legs while sleeping beside her children.

Some Manenberg residents said at the beginning of August 2013 that gang violence is destroying the future of the youth in their community. Community members took to the streets on Saturday 17 August 2013 to protest the ongoing gang violence after several people were killed in recent weeks. A resident, Amelia Kiewiets, said they have had enough. “In most cases the community gives in to the shootings, but as a person in this community I say we must turn it around. We must be able to say we’re not afraid.”

On Friday 16 August 2013, Western Cape Social Development MEC, Albert Fritz, pledged more funding and called on non-governmental organisations to intensify their programmes in Manenberg. The MEC was visiting the crime-riddled suburb, where he happened to grow up. He promised to give a local trauma centre more funding, adding that a trauma counselling service in Manenberg is critically needed. “Teachers and children in Manenberg are traumatised. We and other stakeholders that specialise in trauma counselling have agreed to roll out an intervention programme.”

Western Cape Premier, Helen Zille, has also spoken up about the crisis situation in Manenberg. Zille has outlined a joint intervention plan implemented by the Provincial Government and City of Cape Town in a bid to address the problem. “After having discussions with the affected educators from twelve schools in Manenberg, the city and the province have worked out, together with the schools and with the SAPS, an intensified plan to ensure the safety of the Manenberg community.” The government has supplied R6 million to help create a program that will see the employment of more police members in the area of Manenberg. These police members will patrol the suburb as well as secure a safe way for learners and educators to enter and leave schools. Helicopters have also been deployed to patrol the area of Manenberg and be on the lookout for possible shootings. The main leaders of the gang mobs have decided to call a “truce”, because too

Education, in particular basic education, is important for individual and societal development. The effects of educational segregation during Apartheid are evident in the systemic problems of inadequate facilities and the discrepancy in the level of basic education for the majority of learners. Basic education is an important socio-economic right directed, among other things, at promoting and developing a child’s personality, talents and mental and physical abilities to his or her fullest potential. Basic education also provides a foundation for a child’s lifelong learning and work opportunities. To this end school access – an important component of the right to a basic education guaranteed to everyone by Section 29 (1) (a) of the Constitution – is a crucial condition.

The Constitution, as well as The Bill of Rights, also recognises that children need protection. More specifically in the context of social welfare, children have the right to “family care or parental care, or to appropriate alternative care when removed from the family environment, as well as the right to “be protected from maltreatment, neglect or abuse”, and to what is generally termed socio-economic rights, namely rights to “basic nutrition, shelter, basic health care services and social services”. Is the fact that children are being caught in the middle of gang-related crossfire, not maltreatment?

The main leaders of the gang mobs have decided to call a “truce”, because too many children are getting involved or hurt and losing out on their education, though the gangs themselves are the reason. Only time will tell, but hopefully something drastic gets done and both the Government as well as the leaders of these mobs stick to their “guns” and stay committed to helping the children.

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)

REGISTERING DEATHS AND DEATH CERTIFICATE REQUIREMENTS IN SOUTH AFRICA

A2Many South African citizens do not know the correct procedures to follow in order to register a death, or how to obtain a death certificate and by whom, until it is too late. Coming to terms with a death is difficult enough without having to enquire about the legal processes that are necessary in the circumstances in order to proceed with funeral arrangements and other family affairs. The Births and Deaths Registration Act 51 of 1992 outlines the simple requirements and procedures to be followed upon the death of a South African citizen.

The Births and Deaths Registration Act no. 51 of 1992 requires that a person’s death must be reported to any one of the following people authorised by The Department of Home Affairs. Specific officers at the Department of Home Affairs, South African Police Service members, South African Missions, Embassy’s or Consulates where the death occurred abroad or funeral undertakers that have been appointed and are recognised by law.

A Notification of Death or Still Birth Form (Form BI-1663) must be completed when reporting a death. This form, along with all other forms that may be necessary are available from all Home Affairs offices. The following people have to complete different sections of this form in order for it to be submitted: the person reporting the death, the medical practitioner or traditional healer involved in the declaration of the death, and a Home Affairs official or a member of the Police service if a Home Affairs official is not available.

A Death Report (Form BI-1680) will be issued after a death has been registered with one of the relevant department officials. Only someone whom the Department of Home Affairs has authorised to do so can issue this report and this includes traditional leaders, members of the SA Police Services and authorised undertakers.

These designated people may also issue burial orders. No burial may take place unless authorised by way of a burial order (Form BI-14).

Deaths of South African citizens and South African permanent residence permit holders that occur outside South Africa must be reported to the nearest South African embassy or mission abroad. The country in which the death occurs must issue a death certificate and a certified copy of the death certificate must be submitted to the South African embassy or mission when reporting a death. If the deceased is to be buried in South Africa, the embassy or mission will assist with the paperwork and arrangements with regards to transportation of the body to South Africa.

The Department of Home Affairs will issue a Death Certificate on receipt of the notification of death form BI-1663 and the Death Report form BI-1680. Applications for a Death Certificate must be lodged at any office of the Department of Home Affairs or at any South African embassy, mission or consulate if the death occurs abroad. An abridged death certificate will be issued free of charge on the same day of registration of death. An unabridged death certificate can be obtained by completing Form

 BI-132 and paying the required fee.

If a person has been recorded, mistakenly or fraudulently, as dead in the National Population Register, (i.e. they are still alive); this must be reported as soon as possible to the nearest Department of Home Affairs office for urgent investigation and corrective action.

Chapter 3 (Section 14 to 22) of the Births and Death’s Registration Act regulates all matters pertaining to the Registrations of Deaths in South Africa and regulations on how to obtain a Death Certificate. The Act provides for the different procedures to be followed when a death is due to natural causes, stillbirth or other methods. This process is simple to follow and the appointed officials at Home Affairs Departments are fully equipped to process registrations and to answer any questions you may have.

Reference List:

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)

PUBLIC NUISANCES: LEGAL RIGHTS IN TERMS OF LEGISLATION

A1Persons who commit disruptive acts of unacceptable behaviour in public places may be warned, arrested and subsequently prosecuted by the authorities. The offender shall be liable for a fine, imprisonment or both upon conviction. How is this enforcement of our rights achieved by an ordinary citizen?

A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience or welfare of a community.[1]

Legislation offers relief in this respect, in specific by-laws of local Municipalities. A by-law is a law that is passed by the Council of a municipality to regulate the affairs and the services it provides within its area of jurisdiction[2]. A municipality derives the powers to pass a by-law from the Constitution of the Republic of South Africa.

With regards to Public Nuisances one would look to By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007[3]. The main body of this by-law lists certain acts that are deemed prohibited behaviour and are therewith criminalised. Various acts including begging, using abusive or threatening language, being under the influence of drugs or alcohol and causing a disturbance by shouting, screaming or making any other loud or persistent noise or sound, including amplified noise or sound are listed therein.[4]

Should anyone and his conduct fall within this definition and perform any or multiple prohibited acts of public nuisance, the authorities are to be alerted immediately. The authorities have the power to instruct the offender to immediately cease the offending behaviour, failing which he will be guilty of an offence.

Section 23 states that any person who contravenes or fails to comply with any provision of this by-law or disobeys any instruction by the authorities enforcing this by-law, shall be guilty of an offence. This offender shall be liable to a fine or imprisonment for a period not exceeding six months, or to both a fine and such imprisonment.

It is therefore evident that by identifying certain acts of unacceptable, aggressive, threatening, abusive or obstructive behaviour of persons in public the offender may be ordered to immediately cease such offending conduct or be arrested for not complying with any order to do so.

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)

Reference List:

  1. http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/
  1. http://legal-dictionary.thefreedictionary.com/Public Nuisance
  1. http://openbylaws.org.za/
  1. https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx
  •  http://legal-dictionary.thefreedictionary.com/Public Nuisance
  • https://www.capetown.gov.za/en/bylaws/Pages/Home.aspx
  • http://openbylaws.org.za/za/by-law/cape-town/2007/streets-public-places-noise-nuisances/
  • Section 2 By-law Relating to Streets, Public Places and the Prevention of Noise Nuisances, 2007

 

© 2017

Theme by Anders NorenUp ↑