Month: October 2016

WHEN MUST YOU CONSULT THE FAMILY ADVOCATE?

my-lawyer_images_oct-05You may consult the Family Advocate if you have a dispute relating to either the best interests of a child and/or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

  1. When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.
  2. When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.
  3. An application to define contact.
  4. A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.
  5. Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).
  6. Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).
  7. Parental child abduction to and from South Africa.

If there is a dispute regarding the contact, guardianship or care (parental responsibilities and rights) of a minor child, the Office of the Family Advocate would be requested to investigate the welfare and best interest of the minor child involved. Often, they provide a report which is handed to the relevant Court for consideration. The Office of the Family Advocate is not employed by the parties involved. They work for the State ensuring that they are objective in their investigation and only have the child’s best interests at heart.

Steps involved

  1. Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute.
  2. Upon receipt of the request, the Family Advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator
  3. The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court.
  4. The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child.
  5. Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

In a typical custody dispute, a Family Advocate and social worker would be appointed to a case and investigate it. The social worker and the Family Advocate would consult with the parents (or parties involved in the dispute), visit their homes if necessary and obtain information from relevant parties etc. The Family Advocate and social worker would also speak to the child and may want to observe the child’s interaction with the parents. If there are other professionals, for example, a social worker or a psychologist who assessed the situation and provided a report, the Office of the Family Advocate would consider those documents as well and even consult with those experts before handing in their report.

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)

References:

http://www.ourlawyer.co.za/family_advocate_cape_town.htm

http://www.justice.gov.za/services/consult-fam-adv.html

BAIL IN SOUTH AFRICA

my-lawyer_images_oct-04In any court case when a person is arrested, the accused person remains to be presumed not guilty until the court finds such person guilty.  In our law no one may be detained without trial. If an accused is arrested, he or she is normally kept in prison or the police cells till the trial is finalised to ensure the presence of the accused at court.

If the person wishes not to be imprisoned pending the finalisation of the trial, he or she may apply to the court to be released on warning or on warning with some conditions attached or on bail (with or without conditions).  Bail is the sum of money paid to the court or to the police. Bail is granted more readily when the accused is not a flight risk and can easily be found by law enforcement agencies. There is usually bail conditions set by the presiding officer that the accused must comply with.

What information should be obtained from the accused once s/he has been arrested?

  • When was the accused arrested?
  • What was the accused arrested for?
  • Where is the accused being detained?
  • What is the case number?
  • Who is the investigating officer?
  • What is the personal information of the accused, such as his/her name, surname, residential address, identity number, place of work, marital status, number of children, and next of kin?

Where can a person apply for bail?
The accused or his/her legal representative can apply for bail at the police station before the accused’s first court appearance, or at court.

What should a person do if bail is granted at the police station?

  • The amount set by the police official should be paid and the accused will be released from custody.
  • The police official will give a receipt and notice indicating the alleged criminal offence together with the date and time the accused should appear at court.

If the prosecution does not oppose the granting of bail, it does not automatically mean the court will grant bail. The court still has a duty to weigh up the personal interests of the accused against the interests of justice.

It is important to note that any person who has been released on bail and who does not, without good cause, appear at court on the due date, remain in attendance until the proceedings are complete, or who fails to comply with bail requirements, is guilty of an offence and will be liable to a fine or to a term of imprisonment not exceeding one year.

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:

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5462201

https://www.legalwise.co.za/help-yourself/quicklaw-guides/bail/

http://www.justice.gov.za/faq/faq-bail.html

WHAT ARE TENANT AND LANDLORD DUTIES?

my-lawyer_images_oct-03When it comes to letting a property – both the tenant and the landlord should always enter into any letting agreements openly and honestly and intending for each party to get proper value. Often it’s the approach which the parties adopt which will determine whether the relationship between the parties and the benefits they derive therefrom is mutually satisfactory. Furthermore, there are important duties that each party is expected to do.

Non-Statutory Law (Common Law)

The tenant is obliged to:

  • Pay the proper amount of rent in the proper commodity at the proper place and time.
  • Take good care of the property and not use it for other purposes than for which it was let.
  • Restore it to the same condition that he received it at termination of the lease.
  • Common law states simply that the full rent must be paid at the proper time – the time and date agreed by both the tenant and the landlord. It does not provide the tenant with a 7-day grace period.

Statuary Law (The Rental Housing Act)

The tenant is obliged to:

  • Make prompt and regular payment of rent and other charges payable in terms of the lease.
  • Make payment of a deposit – the amount of which should be agreed upfront between the landlord and tenant.
  • Have a joint incoming and outgoing inspection with the landlord.

The property owner

The prime duty of a property owner is to give a tenant occupation and control of the property. Furthermore, the owner has to maintain the property in its proper condition, subject to fair wear and tear (defined as the ‘unavoidable consequence of the passage of time’). The owner must also ensure that normal running repairs to the property are carried out.

A second important duty of the owner is a guarantee that the tenant will enjoy the undisturbed use and enjoyment of the property for the duration of the lease. This duty has three facets:

  • The property owner must not unlawfully interfere with the tenant’s rights although he or she is entitled, in certain circumstances, to interfere lawfully if, for instance, the tenant has to vacate the premises temporarily to allow necessary repairs to be done. Although an owner also has a right of inspection, this right must be exercised in a reasonable manner.
  • The owner must protect the tenant against being disturbed by ‘third parties’ who may claim a stronger right to the property than the tenant. For example, if you sub-let property from a lessee whose lease is invalid (perhaps because it has not been drawn up properly), you could be evicted by the original owner of the property. If this happens, the person who sub-let the property to you is obliged to protect you from being evicted.

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:

http://www.privateproperty.co.za/advice/property/articles/tenants-rights-and-obligations/559

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=2663821

http://www.chaseveritt.co.za/tenant-rights-south-africa

THE DIFFERENCE BETWEEN A STRIKE AND A LOCKOUT

my-lawyer_images_oct-02Workers have a right to strike, and employers have a right to lock out workers, if a dispute cannot be resolved. Certain procedures and certain limitations apply under certain conditions. Secondary strikes and pickets may also be held.

What is a strike?

To strike is the refusal to work, the slowing down of work or the obstruction of work by employees (“strikers”). A strike takes place to resolve a dispute between the employees and their employer. The dispute must be about something in the employer’s control for example, wages, improved working conditions and other disputes of mutual interest.

While employees have the right to strike, an employer has an option to lock-out. However, these rights can sometimes be limited, for example, if the employees are bound by a collective agreement or are involved with essential services.

What is a lock-out?

A lock-out is the refusal of the employer to grant the employees access to the workplace. This means that the employees are not able to tender their services and as a result will not be paid.

A lock-out takes place in response to a strike or to force the employees to accept a demand of the employer. The demand must relate to disputes of mutual interest. The demand of the employer can be, for example, to force the employees to accept changes to their terms and conditions of employment.

The rights of workers and employers

Every worker has the right to strike, and every employer has the option to lock out workers, if:

  1. a dispute has been referred to a council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
  2. a certificate that a dispute remains unresolved has been issued;
  3. 30 days have elapsed since the referral; and
  4. 48 hours’ written notice of a strike is given to
  5. the employer; or
  6. a council (if the dispute relates to a collective agreement to be concluded in a council); or
  7. to an employers’ organisation (if the employer is a member of an organisation that is a party to the dispute); or
  8. 48 hours’ written notice of a lockout is given to
  9. the trade union; or
  10. to the workers (if they are not trade union members); or
  11. a council (if the dispute relates to a collective agreement to be concluded in a council).

What happens when a dispute cannot be resolved?

Step 1: Conciliation – the dispute must be referred to the Council for Conciliation, Mediation and Arbitration (“CCMA”) or Bargaining Council for resolution.

Step 2: Certificate of outcome – if the dispute remains unresolved, or; a 30-day period has expired since it has been referred to the CCMA a certificate of outcome must be obtained.

Step 3: Notice of Commencement – at least 48 hours prior to the strike or lock-out a written notice of the commencement must be given.

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)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/strikes-and-lock-outs/

http://www.labour.gov.za/DOL/legislation/acts/basic-guides/basic-guide-to-strikes-lockouts-and-picketing

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