Month: August 2017

I CAN’T REPAY MY DEBTS, WHAT CAN I DO?

If you are over-indebted, in other words, unable to repay all your credit agreements. Your biggest concern might be not getting dragged off to court or having all your possessions taken away. So what can you do to get out of your mess?

Debt review

Before you receive a summons for your outstanding debt you can opt for debt review. It’s important to take this option if you believe you won’t be able to pay your debts because once you receive a summons it’s too late. Debt review was introduced in 2007 with the National Credit Act (NCA).

During the first 60 business days from the date of your application to be placed in debt counselling, legal action may not be taken against you in respect of debts that are “under review”. Therefore, if you’ve opted for debt review, you don’t have to stress about someone knocking on your door, yet.

What if you don’t pay your debts?

If you decide not to go for debt review and fail to pay your outstanding debt, the creditors could take the following actions against you:

  1. Issue a summons and obtain judgement against you for the outstanding debt, interest and their legal costs;
  2. Send the sheriff to attach your property, such as your car;
  3. Instruct the sheriff to sell the attached property at an auction;
  4. Obtain a court order that your employer deduct an amount an amount from your salary and pay it over to the creditor (emolument attachment order).

Debt review process

If you decide to go for debt review, a registered debt counsellor has to first assess your financial obligations. This is basically what you have to pay every month. Some of your financial obligations may be due to reckless credit. This is when a creditor grants you credit without checking if you can afford it first. However, if you lied in your credit application, your financial obligations won’t be considered reckless credit.

If you are over-indebted the debt counsellor will draw up a repayment plan to rearrange your debt obligations. If your creditors reject the repayment plan, your debt counsellor can refer the matter to a magistrate’s court with a recommendation.

The court could make the following orders:

  1. You are not over-indebted and must continue making regular payments. If you don’t the creditor may take legal action to force you to pay.
  2. You are over-indebted and reckless credit was granted to you. The court may relieve you of some or even all of the payments under a reckless credit agreement depending on what is fair and just. The court may also postpone the date of payment under reckless credit agreements.
  3. You are over-indebted and must rearrange your payment obligation.

Hopefully, the creditors accept the repayment plan, or a magistrate’s court agrees to the repayment plan. The Payment Distribution Agent (PDA) will then channel your revised payments to your creditors. The payments are made directly to the PDA.

Once you’ve successfully paid all your debts, the debt counsellor will issue you with a clearance certificate. They will also notify the credit bureaus that you are no longer in debt counselling.

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:

Arde, A. 2013. “Debt review process step by step”. IOL. [online] Available at: http://www.iol.co.za/business/personal-finance/debt-review-process-step-by-step-1616109/ [Accessed 07/06/2016].

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

CAUTION TO EMPLOYERS: DON’T FALSELY ACCUSE EMPLOYEES

Employers who dismiss employees should take remember not to falsely implicate them in the process. This could land employers in hot water with the CCMA, and the Court.

Clover SA (Pty) Ltd and Another v Sintwa

In a recent case, the High Court heard a damages claim arising from defamatory statements made by a witness while giving evidence before the CCMA.

Harrison Sintwa was employed by Clover SA as a team leader, reporting to Frederick Bopp, a production manager. He was responsible for checking machines and products to ensure that they passed the relevant standards. He was required to sign a daily operator report to confirm that the checks were done.

One day, it came to Clover’s attention that Sintwa had falsely signed that he had conducted certain checks when, actually, he had not. Clover charged him with fraudulently co-signing the report. A disciplinary inquiry was convened and Sintwa was dismissed.

The CCMA

Sintwa approached the CCMA with an unfair dismissal dispute. Bopp gave evidence on behalf of Clover at the disciplinary hearing and at the arbitration proceedings before the CCMA. During his evidence, he stated that it came to his attention that Sintwa had co-signed the report sheet and, therefore, committed fraud. The CCMA commissioner found Sintwa’s dismissal to be unfair on the basis that Clover had failed to prove that he was guilty of fraud, finding that his conduct was instead a result of negligence. Mr Sintwa was awarded four months’ salary as compensation.

Implicating an employee can lead to defamation

It didn’t end there, Sintwa also approached the High Court and instituted a damages claim against Clover and Bopp, based on the alleged defamatory statements they presented at the arbitration proceedings before the CCMA. Sintwa claimed R100 000 as damages saying that Bopp and Clover had wrongfully and unlawfully claimed that he had committed fraud.

The court concluded that the statement implicating Sintwa of fraud was irrelevant and unconnected to the arbitration proceedings before the CCMA and that Bopp had acted out of spite, which was supported by the fact that another employee who had co-signed the report with Sintwa had not been charged. It decided that Clover and Bopp had exceeded the bounds of qualified privilege and awarded Sintwa R100 000 in damages.

Conclusion

The take away is that employers should refrain from acting out of spite when dismissing employees. What you say, if untrue or unsupported, could make you accountable for an employee’s dismissal, to the CCMA and the Court.

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:

Clover SA (Pty) Limited and Another v Sintwa (CA2011/2015) [2016] ZAECGHC 77; [2016] 12 BLLR 1265 (ECG); (2017) 38 ILJ 350 (ECG) (13 September 2016)

WHY IS MY PROPERTY TRANSFER TAKING SO LONG?

After signing a deed of sale, the purchasers often want to move into the property as soon as possible. When they are informed of the process involved prior to the property being transferred this may damper their excitement. There may also be delays in the transaction. In order to avoid unnecessary frustration, it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable.

The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer.  This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction.

Postponements, delays and interruptions

  1. A major role of the conveyancer is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running. The notice period is usually up to 90 days. The transfer may be delayed as a result of this notice period.
  1. Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time. Examples of these is the rate clearance certificate, transfer duty receipt, homeowners’ association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate. The time it takes to obtain these certificates will differ from case to case. After an inspection by a plumber or electrician, for example, it may be found that certain work needs to be carried out before the certificates will be issued.
  1. Once all the documents are lodged at the Deeds Office by the conveyancer, an internal process is followed, which has different time frames in the various Deeds Offices. This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage.

There are many ways in which the transfer process could be delayed, these are just some of the examples. If you feel that the process is taking too long, then you should contact your conveyancer.

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. (E&OE)

Reference:

 Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West

CUSTOMARY MARRIAGES AND COMMUNITY OF PROPERTY

Since the promulgation of the Recognition of Customary Marriages Act, 120 of 1998, the position has changed in that customary marriages are now recognised in our law. A marriage that is valid in terms of customary law and was in existence at the time of commencement of the Act, is for all purposes recognised as a marriage in terms of the Act. In the case of a person being in more than one customary marriage, all valid customary marriages entered into before the commencement of the Act, are for all purposes recognised as valid marriages in terms of the Act.

This also means that customary marriages will fall under community of property. For a customary marriage not to fall under community of property, an ante nuptial contract must be in place.

What is a customary marriage?

  • It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
  • A customary marriage entered into before 15 November 2000 is recognised as a valid marriage, however, it will be regulated in terms of the specific traditions and customs applicable at the time the marriage was entered into.
  • A customary marriage entered into after 15 November 2000 is recognised as a valid marriage and will receive full legal protection irrespective of whether it is monogamous or polygamous.
  • A monogamous customary marriage will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.

In a polygamous marriage, the husband must apply to the High Court for permission to enter into such a marriage and provide the court with a written contract stating how the property in the marriages will be regulated (to protect the property interests of both the existing and prospective spouses).

Registering Customary Marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

  • The two spouses (with copies of their valid identity books and a lobola agreement, if available).
  • At least one witness from the bride’s family.
  • At least one witness from the groom’s family.
  • And/or the representative of each of the families.

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

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:

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

https://www.westerncape.gov.za/service/customary-marriages

http://www.legalcity.net/Index.cfm?fuseaction=RIGHTS.article&ArticleID=5331587

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