Month: December 2017

SECTIONAL TILES: WHAT IS THE ROLE OF THE BODY CORPORATE?

When it comes to sectional title schemes, there is still widespread misunderstanding of even the basics, starting with the body corporate and how it is established, as well as what its functions and powers are. This misunderstanding often gives rise to many problems and disputes in sectional title schemes which could quite easily have been avoided.

What is a sectional title?

A Sectional Title Development Scheme, usually referred to as a “scheme”, provides for separate ownership of a property, by individuals. These schemes fall under the control of the Sectional Titles Act, which came into effect on 1 June 1988.

When you buy a property that’s part of a scheme, you own the inside of the property i.e. the space contained by the inner walls, ceilings & floors of the unit. You are entitled to paint or decorate or undertake alterations as desired, providing such alterations do not infringe on municipal by-laws.

What is the body corporate?

The Body Corporate is the collective name given to all the owners of units in a scheme. Units usually refers to the townhouses or flats in a development. The body corporate comes into existence as soon as the developer of the scheme transfers a unit to a new owner. This means that all registered owners of units in a scheme are members of the Body Corporate.

  1. The Body Corporate controls and runs the Scheme.
  2. Day-to-day administration of the Scheme is vested in trustees who are appointed by the Body Corporate.
  3. Major decisions regarding the Scheme are made by the Body Corporate, usually at the annual general meeting (AGM), or at a special general meeting (SGM). At these meetings, matters, which affect the Scheme, are discussed, budgets are approved, rules can be changed and trustees are appointed. Each member of a Body Corporate is entitled to vote at these meetings, providing that the member is not in arrears with levy payments or in serious breach of the rules.

The Body Corporate exists to manage and administer the land and buildings in the scheme. This means, that the Body Corporate is required to enforce the legislation and rules in the Sectional Titles Act, the Management Rules and the Conduct Rules of the scheme. Amongst their other duties, the Trustees manage the Body Corporate’s funds, enforce the rules and resolve conflict to the best of their ability.

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.angor.co.za/news/understanding-sectional-title-terminology-body-corporate/

http://www.sectionaltitlecentre.co.za/faqs.aspx

http://www.bizcommunity.com/Article/196/568/161017.html

 

WHAT IF YOU’VE BEEN A VICTIM OF CYBERCRIME?

In the modern age, more and more criminals are exploiting the speed, convenience and anonymity of the internet to commit a diverse range of criminal activities that know no borders, either physical or virtual, and cause serious harm to victims worldwide.

In December 2016, cabinet gave the green light for a Cybercrimes and Cybersecurity Bill that has sparked criticism over its potential to curb a free internet. Cabinet said the bill is about, “combatting cybercrime, establishing capacity to deal with cybersecurity and protecting critical information infrastructures”.

What is cybercrime?

Cybercrime takes many different forms, such as using financial information to commit an offence, unlawful interception of data, computer related forgery, extortion, terrorist activity and the distribution of ‘harmful’ data messages.

Hackers can get access to your computer by simply sending you an e-mail that automatically causes malware software to download as you open the mail. The hacker then has full access to your computer and the data in it and can lock you out. So, what should you do if you have been a victim of cybercrime?

  1. Disconnect: If you’re a victim of a hack, then you should disconnect from the Internet immediately. If you’re connected via Wi-Fi, phone or Ethernet cable, you need to disable the connection as soon as possible.
  2. Scan your PC: It’s a good idea to have antivirus software to scan your computer.
  3. Create a backup: Create regular backups of your files and folders.
  4. Reinstall your operating system: Depending on the severity of the attack, it might be necessary to reinstall the operating system of your computer.

 Online Fraud

If you’ve been a victim of online fraud, such as your credit card information being stolen, then try the following:

  1. Close all accounts: If you find that you are the victim of online fraud or identity theft, the first thing you should do is close all affected accounts immediately.
  2. Contact your bank: By contacting your bank, you can notify them regarding the fraud and its source. They can also assist you in recovering any stolen finances and issuing new cards.

The new Cyber and Security Bill creates about 50 new offences for crimes such as hacking, using financial information to commit an offence, unlawful interception of data, computer related forgery, extortion, terrorist activity and distribution of ‘harmful’ data messages. Hopefully, this will help curb the growth of illicit online activities.

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://za.norton.com/victim/article

http://www.fin24.com/Tech/News/controversial-cybersecurity-bill-gets-cabinet-approval-20161212

http://www.news24.com/SouthAfrica/News/dont-be-a-victim-of-cyber-crime-20160919

HOW AND WHEN TO USE THE SMALL CLAIMS COURT

The small claims court (SCC) is for anyone who wants to institute a minor civil claim against someone else. You can also claim against companies and associations. However, the claims are limited to amounts that are less than R15 000. This excludes the State, meaning a person cannot make a claim against a local municipality, for example. Claims made in the SCC are done quickly and cheaply without having to use an attorney and anyone, except juristic persons, are allowed to use them.

Read more about the SCC on The Department of Justice and Constitutional Development’s website: justice.gov.za

Where do I start?

If you are going to institute a claim against someone else, be smart about it. Don’t make a claim against someone who you know has no money to pay you back, such as an unemployed person.

Before running to the court to make a claim, first contact the person you intend to claim from and ask them to fulfil your request. Let them know you are planning on going to the court to make a claim against them if they don’t comply.

Perhaps the person is not interested in your claim, then send them a written demand letter. The letter should set out the details of the claim, including the amount. Give them at least 14 days from the day of receiving your letter to settle your claim.  Make sure they get an actual physical copy of the letter. This can be posted to them, or you can simply take it to them directly.

So 14 days has passed and they didn’t respond. Now you can go to the clerk of the court with documents to institute your claim. Firstly, you will need proof that you delivered the letter of demand. This can be a post office slip, for example.  You will also need a contract or document that gives a bases for your claim. Your claims can’t just be based on thin air. Lastly, provide the court with all the details of the person you’re claiming from, such as name, address and phone number.

The summons

The clerk of the court will help you in drawing up the summons.  Once the summons is complete a hearing will also be scheduled. You then have to serve the summons to the opposing party (defendant) in person and get them to sign it. Don’t be surprised if they are visibly upset. Remember to make copies of all the documents and keep them. Also give copies to the defendant. The original documents must be handed over to the clerk of the court before the day of the hearing. This information will be kept in the court file.

After they receive the summons, the defendant may deliver a plea (written statement) to the clerk of the court. They may also issue a counterclaim. Regardless of whether the defended institutes a plea or counterclaim, they still have to attend the hearing. On the other hand, the defendant may decide to fulfil your claim before the hearing, you should then issue a written receipt and let the clerk of the court know that you won’t be continuing with the case.

Going to the hearing

You and the defendant must appear in court in person, attorneys or lawyers are not necessary. Remember to bring along all the documents on which your claim is based, there’s no point in showing up empty-handed. If you have witnesses, make sure they also come with you to the hearing. The SCC proceedings are basic and straight-forward. As mentioned, no attorneys are involved. As the proceedings begin, answer any questions that the commissioner of the court asks you. If you want and the commissioner agrees, then you can direct questions to the defendant. 

The final judgment

After the proceedings have been completed, the court will make a judgement, which is final. There may, however, be some grounds for review. If the judgement is against you, then you should settle any order for costs. Since the court judgement is final, you have to abide by it. You can’t change your mind afterwards.

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)

WHO PAYS FOR THE CHILD AFTER DIVORCE?

When couples divorce it’s often the children that feel the brunt of it. Sometimes it’s the other person in the relationship that suffers economically. Hence the reason there’s a legal duty towards maintenance after divorce, which is an obligation to provide for another person.

A child of a divorced couple, for example, may need help with housing, food, education and medical care. Maintenance could also be understood as providing the means for the person to have the necessary essentials. Maintenance duties is based on factors such as blood relationship, adoption, or that two people are/were married to each other.

This duty is also referred to as ‘the duty to maintain’ or ‘the duty to support’. 

Which parent supports the child?

If a couple has decided on getting divorced, then the child has to be supported by both the parents, regardless if they’re living together or whether or not the child was adopted. In some cases, the grandparents are also responsible for the child’s maintenance, even if the parents weren’t married. This usually happens if the parents are unable to support the child.

What if the child is living with one parent?

In scenarios where the child is living with one of the parents, it is still the duty of the other parent to also contribute to the maintenance of the child. Many people in South Africa, especially women, face the reality of an ex-spouse who doesn’t live with the child and doesn’t want to pay maintenance. However, there is no legal way out of a parent contributing to a child’s maintenance, even if one of the parents re-marries.

What if you can’t find your non-paying ex-spouse?

If one of the child’s parents refuses to pay and doesn’t make their whereabouts known, then it is the responsibility of the state to claim maintenance from the unpaying parent. Maintenance investigators will try solve the issue and trace the person who is responsible for maintenance.

When does the maintenance end?

Until a child reaches the age of 18, his/her parents or another person (guardian) will have the parental rights and responsibilities for the child. This includes the maintenance of the child. So both the divorced parents of a child will have to contribute to the caring and maintenance of the child at least until he/she becomes an adult.

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:

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

Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, Maintenance. [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 13/05/2016].

© 2018

Theme by Anders NorenUp ↑