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THE CONSUMER PROTECTION ACT AND YOUR RIGHTS

My Lawyer_Images_Template-03The South African Consumer Protection Act, No. 68 of 2008 was signed on 24 April 2009 and the purpose of the Act is to protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace and also to give effect to internationally recognised consumer rights. The Consumer Protection Act define a consumer as any person to whom goods and services are marketed, who is a user of the supplier’s goods, enters into a transaction with the supplier or service provider of any services and products.

If you have a complaint and the supplier won’t resolve it for you, you can complain to your provincial Consumer Affairs Office or the National Consumer Commission as well as other bodies.

The Consumer Protection Act:

  • ensures that you are treated as an equal and protects you against discrimination in economic transactions.
  • protects your privacy and ensures fair practice when goods or services are marketed to you.
  • means you have the right to choose the agreements you enter into and continue with.
  • gives you the right to the disclosure of information so that you can make informed choices.
  • protects you against fraud and other dishonest practices.
  • makes sure that you don’t have to agree to unfair conditions in the small print.
  • allows you to return things which don’t work properly.
  • protects you against goods and services that can harm you.
  • makes suppliers compensate you if they have caused you a loss.
  • ensures that you are educated on consumer issues and the results of your
    choices.
  • makes it possible for you to form groups to promote your interests.

The Consumer Protection Act can help consumers in dealings which involve advertising, marketing, promoting, selling, supplying and delivering or repairing of goods and services in South Africa.
You are a consumer if you have made a deal with a supplier, for example, when you pay for goods or services, or if goods or services are marketed to you.

Goods include things, but also information and data and the licence to use it. Services include receiving advice or training you pay for, transport of people or goods, transactions at restaurants and hotels, entertainment and access to electronic communication. Employment relationships, credit agreements, deals between two private consumers and goods or services supplied to government do not fall under the Consumer Protection Act.

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.saconsumercomplaints.co.za/your-rights/

http://www.legal-aid.co.za/selfhelp/?p=422

THE CONSEQUENCES OF DRINKING AND DRIVING

My Lawyer_Images_Template-02With the zero-tolerance approach the law has towards road users, it’s necessary to address the consequences of drinking and driving. Unfortunately, holidays and weekends often bring devastating road accidents, with families being injured and losing members due to drunk-driving related incidents.

What does the law say? 

According to the Road Traffic Act 93/96, which has been in effect since March 1998, no person shall on a public road:

  • Drive a vehicle; or
  • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while under the influence of intoxicating liquor or a drug having a narcotic effect.
  1. No person shall on a public road:
  • Drive a vehicle; or
  • Occupy a driver’s seat of a motor vehicle, the engine of which is running, while the concentration of alcohol in any specimen of blood taken part of his or her body is not less than 0,05 grams per 100 millilitres.
  1. If, in any prosecution for a contravention of the provisions of subsection (2), it is proved that the concentration of alcohol in any specimen of blood taken from any part of the body of the person concerned was not less than 0,05 grams per 100 millilitres at any time within two hours after the alleged offence, it shall be presumed, until the contrary is proved, that such concentration was not less than 0,05 grams per 100 millilitres of blood at the time of the alleged offence.

What happens if you are caught?

  1. You will be arrested for being over the limit: If you are suspected of driving over the limit, you will be Breathalysed.
  2. Your blood will be taken: If the Breathalyser tests positive, you will be taken into custody and sent for further testing at an alcohol testing centre.
  3. You will be detained: Once you have been arrested you will be taken to a police station, where you will be detained in the holding cells for at least four hours to sober up.

After your release, a docket will be opened and you will be allocated an investigating officer who will follow up your blood test results.

Conclusion

Getting behind the wheel after drinking alcohol should not be an option. People should always use an alternative option, such as getting a lift with someone else, Uber, or using a taxi. Besides the fact that drinking and driving could cost you or someone else their life, it also has severe legal consequences.

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.arrivealive.co.za/Alcohol-and-Legal-Implications-of-Drunk-Driving

IS YOUR BUSINESS POPI COMPLIANT?

My Lawyer_Images-05POPI refers to South Africa’s Protection of Personal Information Act which seeks to regulate the Processing of Personal Information.

What is Personal Information?

Means any information relating to an identifiable, living natural person or juristic person (companies, CC’s etc.) and includes, but is not limited to:

  • Contact details: email, telephone, address etc.
  • Demographic information: age, sex, race, birth date, ethnicity etc.
  • History: employment, financial, educational, criminal, medical history
  • Biometric information: blood type etc.
  • Opinions of and about the person
  • Private correspondence etc.

What is Processing?

Processing broadly means anything done with someone’s personal Information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not). 

Some of the obligations under POPI:

  • Only collect information that you need for a specific purpose.
  • Apply reasonable security measures to protect it.
  • Ensure it is relevant and up to date.
  • Only hold as much as you need, and only for as long as you need it.
  • Allow the subject of the information to see it upon request. 

Does POPI really apply to me or my business? 

POPI applies to every South African based public and/or private body who, either alone, or in conjunction with others, determines the purpose of or means for processing personal information in South Africa.

There are cases where POPI does not apply. Exclusions include: Section 6:

  • purely household or personal activity.
  • sufficiently de-identified information.
  • some state functions including criminal prosecutions, national security etc.
  • journalism under a code of ethics.
  • judiciary functions etc.

Why should I comply with POPI?                                                                                       

POPI promotes transparency with regard to what information is collected and how it is to be processed. Openness increases customer trust in the organisation.

Non-compliance with the Act could expose the Responsible Party to a penalty of a fine and/or imprisonment of up to 12 months. In certain cases, the penalty for non-compliance could be a fine and/or imprisonment of up 10 years.

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)

WHAT DOES THE DEEDS OFFICE DO?

My Lawyer_Images-04The Deeds Office is responsible for the registration, management and maintenance of the property registry of South Africa. If you are planning on buying a house, it can be useful knowing about the Deeds Office. However, you would use the services of a conveyancer when buying or selling a house. Your estate agent should be able to recommend a conveyancing attorney to register your home loan and transfer a property into your name.

What is conveyancing?

Conveyancing is the legal term for the process whereby a person, company, close corporation or trust becomes the registered and legal owner of immovable property and ensures that this ownership cannot be challenged. It also covers the process of the registration of mortgages.

Steps taken by the conveyancer:

  1. The conveyancer lodges your title deed and other documents in the Deeds Office for registration. These documents will be individually captured on the system. If there is a bond, the conveyancer dealing with the bond will lodge the bond documents with the Deeds Office at the same time as the transfer documents. The transfer, bond and cancellation documents must be lodged in the Deeds Office at the same time to ensure simultaneous registration. If different conveyancers are dealing with registering the purchaser’s bond and cancelling the seller’s bond, then they will need to collaborate.
  2. The Deeds Office examiners go through the documentation that has been submitted, and make sure that it complies with the relevant laws and legislations.
  3. The examiners then inform the conveyancer that the deeds are ready to be registered.
  4. Registration takes place with the conveyancer and Registrar of Deeds present. The transfer of the property is then registered in the purchaser’s name. If there is a bond, it is registered at the same time.
  5. Upon registration, the purchaser becomes the lawful owner of the property. The title deed that reflects this ownership is given to the conveyancer by the deeds office after the registration. Unless a bond has been registered as well, in which case the title deed is given to the bond holder.

The time taken to register a property at the Deeds Office depends on various factors and a number of parties. On average, registering a property transfer takes six to eight weeks, although unforeseen difficulties can cause the period to be extended.

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.justlanded.com/english/South-Africa/South-Africa-Guide/Property/Conveyance

http://www.privateproperty.co.za/advice/property/articles/what-you-need-to-know-about-registering-a-property/5081

WHAT IS RESTORATIVE JUSTICE?

My Lawyer_Images-03Concerns about the effectiveness of traditional criminal justice systems have given rise to new approaches to criminal justice. One such approach is Restorative Justice, a theory that focuses on reconciling and reintegrating offenders into society rather than on retribution. This theory and its practical applications are explained briefly in this article.

What are the values and principles of Restorative Justice?

  1. Restorative Justice processes must comply with the rule of law, human rights principles and the rights provided in the South African Constitution.
  2. Restorative Justice must promote the dignity of victims and offenders, and ensure that there is no domination or discrimination.
  3. All parties must be provided with complete information as to the purpose of the process, their rights within the process and the possible outcomes of the process.
  4. Parties should clearly understand that they may withdraw from the process at any time.
  5. Parties must be given a reasonable amount of time to consider their options, when a restorative justice option is proposed.
  6. Referral to restorative justice processes is possible at any stage of the criminal justice system, with particular emphasis on pre-trial diversion, plea and sentence agreements, pre-sentence process, as part of the sentence, and part of the reintegration process, including parole.
  7. Participation in restorative justice processes must be voluntary for all parties, including victims.
  8. Victims and offenders should be allowed to bring support persons to the encounter provided that this does not compromise the rights and safety of any other party.

Although formal ‘restorative justice programmes’ were first introduced in countries such as Australia and New Zealand, restorative justice concepts are certainly not new to South Africa. In many South African communities, the way of dealing with children has traditionally included mechanisms that encourage children to take responsibility for their actions. This includes outcomes such as an apology, restitution and reparation, and restoring relationships between offender and victim.

When can it be applied?

Restorative Justice can be applied at any stage in the Criminal Justice System such as:

  1. Pre-charge (before a charge is laid).
  2. Pre-trial (after a charge is laid and before accused appears in Court).
  3. Post-charge (after charge, but before plea in court).
  4. After conviction, but before sentence.
  5. Post-sentence (for parole and re-integration purposes).

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.justice.gov.za/rj/rj.html

https://www.westerncape.gov.za/general-publication/what-restorative-justice

DOES YOUR BUSINESS NEED A LIQUOR LICENCE?

My Lawyer_Images-02Liquor manufacturers and suppliers require a liquor license, as regulated by the National Liquor Authority. If your liquor registration has been cancelled you cannot continue to trade. Trading without a license is an offence punishable by law.

What is the National Liquor Authority?

The National Liquor Authority is a regulatory body within the Department of Trade and Industry (the DTI) responsible for administering The National Liquor Act 2003 (Act No.59 of 2003).

What documents are required with my application?

  • A business zoning certificate for industrial purposed or a consent letter from the relevant municipality.
  • A comprehensive written representation in support of the application.
  • Any determination, consent approval or authority required by the Act.
  • A valid proof that the prescribed application fee has been deposited in the bank account of the Department of Trade and Industry.
  • A valid certified copy of ID of the applicant or a passport and trading business permit if the applicant is a foreigner.
  • A South African Police Services (SAPS) police clearance certificate not older than three 3 months from the date of issue.
  • If the applicant is a juristic person, valid copies of registration issued by the Companies and Intellectual Property Commission (CIPC) or any other relevant registration authority indicating the financial interest of all members, shareholders, partners or beneficiaries as the case may be;
  • A valid tax clearance certificate if the applicant is a juristic person issued by the South African Revenue Services (SARS) within twelve months from the date of application.
  • Verification certificate issued in terms of the Broad Based Black Economic Empowerment Act (B-BBEE).

A liquor licence is an extremely important document to possess for those who are planning on trading in, or manufacturing liquor. It is an official document issued to a premise on which liquor is to be sold or manufactured. It can be a time consuming and painstaking process for an individual to obtain a valid liquor licence on their own. There are many complicated legal requirements and steps to follow before a liquor licence can be granted. It is also critical to obtain the correct classification of liquor licence for the premises and/or occasion or event.

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)

OWNING PROPERTY WITHOUT A WILL

My Lawyer_Images-05If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

  1. State where your title deeds are kept and record any outstanding bonds and all insurance
  2. File up-to-date rates and taxes receipts
  3. Record details of the leases on any property you have
  4. State who collects your rent
  5. State who compiles your yearly accounts
  6. State where your water, lights and refuse deposit receipts are kept 

If you die without a will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

  1. Only spouse survives: Entire estate goes to spouse.
  2. Only descendants survive: Estate is divided between descendants.
  3. Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
  4. Both parents survive: Total share is divided equally between both parents.
  5. One parent: Total Estate goes to the parent.
  6. One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
  7. No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
  8. No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.

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.privateproperty.co.za/advice/property/articles/the-importance-of-a-will-for-homeowners/5017

http://igrow.co.za/how-property-passes-upon-death/

HOW CAN A PERSON GET MARRIED IN SOUTH AFRICA?

My Lawyer_Images-04A person can get married in terms of a civil marriage, customary marriage, civil union or religious marriage. A religious marriage is not recognised as a valid marriage, but the spouses in a religious marriage can be protected by law in certain instances.

What are the general requirements for a valid marriage?

  • Both persons to the marriage must give consent to get married and must be older than 18 years of age.
  • A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married. No person younger than 18 years of age can enter into a civil union.
  • The marriage must be lawful, for example:
    • persons who are closely related (such as brother or sister, or parent and child) may not get married; or
    • a person may not have more than one marriage at a time, except for customary marriages.
  • Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer and in the presence of two witnesses.
  • A marriage must be registered at the Department of Home Affairs.

The difference between marriage in and out of community of property

  • MARRIAGE IN COMMUNITY OF PROPERTY: there is one estate between a husband and a wife. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors.  
  • MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM: the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante nuptial contract must be entered into to indicate that the marriage will be out of community of property.  
  • MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM: this is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante nuptial contract.  

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/marriages/

GETTING CHILD CONTACT FOR DIVORCED PARENTS

My Lawyer_Images-03Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

  • The best interests of the child.
  • The nature of the personal relationship between the child and his/her parent/s.
  • The degree of commitment the parent/s has shown towards the child.
  • The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
  • The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
  • Any family violence involving the child or a family member of the child.
  • The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
  • The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
  • Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

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/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

ADOPTING A CHILD IN SOUTH AFRICA

My Lawyer_Images-02Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.

A legal adoption order ends the parental rights of the birth mother and father and hands over the parental rights and responsibilities to the adoptive parents.

There are 4 phases in the adoption process:

  1. Application
  • In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.
  • When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
  • Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.
  1. Screening process
  • All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:
    • orientation meetings,
    • interviews with a social worker,
    • full medical examinations,
    • marriage and psychological assessments,
    • home visits, and
    • police clearance and the checking of references.
  • The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.
  1. Waiting list
  • Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.
  • They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.
  1. Placement
  • The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.
  • Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.
  • The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

An adopted child is regarded as the biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court states otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

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/adoption/

https://www.westerncape.gov.za/service/adopting-child

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