Monthly Archives: June 2016

OCCUPIERS WHO CAN’T BE EVICTED UNDER THE EST ACT

The Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998 (PIE Act) provides, inter alia, the procedures for the eviction of unlawful occupiers. Section 1 of the PIE Act defines an “unlawful occupier” as someone who occupies land without the express or tacit consent of the owner or person in charge or without any other right in law to occupy the land. This definition expressly excludes a person who is an occupier in terms of the Extension of Security of Tenure Act 62 of 1997 (EST Act). Section 29 (2) of the EST Act states that the provisions of the PIE Act will not apply to an occupier in respect of land which he is entitled to occupy in terms of this Act. Who are occupiers in terms of the EST Act and why are they excluded from the ambit of The PIE Act?

The EST Act

The EST Act has as its aim the provision of measures to facilitate long-term secured land tenure with state assistance. This Act grants occupiers the right to obtain a secured long-term right to occupancy with the permission of the owner, upon request on or after 4 February 1997.

Occupiers of rural land, farms and undeveloped land are specifically protected under this Act. The EST Act does not apply to, inter alia, occupiers living in already proclaimed township areas, land invaders, labour tenants and people using land for mining and industrial purposes and for commercial farming purposes. Occupiers in terms of the EST Act receive a secured right in law to live on and use the land they have been occupying, under permission, for continued periods of time. The occupier thus enjoys protection of this right and as a result such a secured right may not be unreasonably altered or cancelled by the owner or person in charge of the land without notice to, and the permission and/or consent of, the occupier. This includes protection against unfair or arbitrary eviction and, in fact, provides its own specific mechanisms for the eviction of long-term secured occupants, which must be followed.

Actions such as the removal of a right to occupancy, access to the land, water or electricity, denial of family or visitors on the said land and the prohibition of the use of the land for personal reasons are all forms of evictions in terms of the EST Act and are strictly regulated by this Act when applicable to occupiers classified under and granted rights in terms of this Act.

Conclusion

Many occupiers of land who do so with the proper and necessary consent and permission of the owner are not aware that they possess tenure rights to occupy the land on a long-term basis. Unless such an occupier commits a serious wrong or fails to honour any terms of the agreement with the owner, he/she may not be arbitrarily evicted in terms of any eviction process available to owners, including those available under the PIE Act. Such occupier’s rights are protected and regulated under the EST Act.

References:

Prevention of Illegal Eviction from and unlawful Occupation of Land Act 19 of 1998; www.sarflii.org/za/legis/consol_act/poiefauoola1998627/ (accessed 11 March 2016);

Extension of Security of Tenure Act 62 of 1997; www.justice.gov.za/lcc/docs/1997-062.pdf (accessed 11 March 2016);

People Against Suffering Oppression and Poverty, PASSOP, www.passop.co.za/your-rights/housing-rights-esta (accessed 11 March 2016).

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.

PUBLIC AND PRIVATE SCHOOL FEES IN SOUTH AFRICA

In terms of Section 5 (3) (a) of the South African Schools Act No 84 of 1996 no learner may be refused admission to a public school on the grounds that his/her parents are unable to pay or has not paid the school fees as determined by the Governing Body. However, this Act does not make provision for independent “private” schools with regard to fees.

The right to education

Section 5 (3) (a) of the South African Schools Act No 84 of 1996 has incorporated Chapter 2 Section 29 (1) (a) of the Constitution of the Republic of South Africa 1996 in terms of which everyone has the right to basic education. Therefore, no child can be sent home or refused to participate in certain activities or sports due to arrears school fees[1]. Public schools must provide for equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees.[2] This means that should a parent find themselves retrenched during the third term of school, they can apply for subsidiary for the tuition of the last term and their child/children can continue their education.

Private schools

The South African Schools Act[3] does not make provision for independent “private” schools. Private schools are governed by the Private Schools Act No 104 of 1986, which does not make any mention of arrears school fees and whether or not children are still allowed their right to basic education if their parents find themselves in a financial struggle. The Private Schools Act focuses more on the regulations of a school itself and how to become a private school.

Problems

The problem relating to this is the fact that the children suffer. At the time of entering their children into a private school, the parents are financially stable. However, what happens if a parent suddenly finds him/herself retrenched? Furthermore, the above problem is aggravated by the fact that private schools are struggling to obtain funds from the Government for subsidies. Race-based inequalities in subsidies to independent schools have been eliminated since 1994. Since then, subsidy levels have differed somewhat per province. But extreme pressure on the non-salary components of provincial education budgets, especially in 1997/98 and 1998/99, has resulted in a sharp decline in the per learner value of independent school subsidies, and considerable uncertainty as to the future trend of independent school funding by provincial education authorities.[4]

[1] South African Schools Act No 84, Section 41 (7)

[2] South African Schools Act No 84 of 1996, Section 39(2) (b)

[3] South African Schools Act No 84 of 1996

[4] South African Schools Act No 84 of 1996: Rules and Regulations

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.

MANAGING DISPUTES OVER A DECEASED RELATIVE’S ESTATE

If someone leaves a sizeable estate behind, it may cause conflict among the possible heirs. The help of an attorney, when settling an estate after a death, can avoid unnecessary troubles.

The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death. There are certain steps that should be taken to ensure the process is legal. However, if the estate is worth a lot of money or the deceased has children, then it is a good idea to seek the assistance of an attorney, as family disputes and debts of the deceased can be confusing. In order to this an executor will be appointed to act on behalf of the estate.

Finding the will of a deceased relative

If the deceased person left a will the first thing to do is find it. If they did not tell you beforehand where their will was, you can try calling the probate court in their district or the office of the master of the High Court to check if they have a copy of the will. Other places to call would be the deceased’s life insurance company, bank or lawyer. Otherwise, they might have left a copy of it somewhere secure in their home.

Who is the executor?

An executor is the person appointed to handle the process of settling the estate. The executor will either be mentioned in the will of the deceased or appointed by the master of the High Court. The master will ultimately decide who will take the role of executor. If the chosen executor doesn’t know how to handle the estate or is unfamiliar with the legal procedure, he or she can go to a lawyer for help. Once the executor has been chosen, the master will give them “Letters of Executorship”, which will give only them the authority to handle the estate.

What does the executor need to do?

The executor has several responsibilities such as arranging the valuation of the estate’s property and assets. They will also be responsible for contacting and dealing with all the beneficiaries.

Some other responsibilities of the executor include:

  • Arranging provisional payments for the family’s immediate needs.
  • Opening a bank account for the estate and depositing the estates money in it.
  • Paying all the necessary estate duties.

It’s important that any person who wants to act on behalf of the deceased person’s estate have the Letters of Executorship. If not, their actions would be considered illegal. This also applies to the spouse of the deceased person. This eliminates the possibility of several different family members trying to influence the estate’s dealings. The executor will also decide how the assets will be divided between the heirs and if any or all assets need to be sold. If a will is in place the executor will base his/her decisions on it.

Eventually, the executor will prepare a liquidation and distribution account. This would include what will they intend to do with all the assets left after expenses. This account would be delivered to the master, who will check to see if the executor’s actions reflect the will of the deceased and that all legal requirements have been fulfilled.

Important things to keep in mind?

The master of the High Court should be notified of the deceased person’s estate not later than 14 days after the death. According to the Department of Justice a death of anyone who owned property in South Africa must be reported to the master, whether or not they died in the country.

All estates that exceed R50 000 should be reported to the master of the High Court directly because magistrate’s offices have limited jurisdiction. If reported to the magistrate’s office, estates would usually be referred to the master.

References:

The Department of Justice and Constitutional Development. 2012. “Reporting the estate of the deceased”. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016.

Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016.

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.

WHO IS LIABLE FOR THE DAMAGES IN A CAR ACCIDENT?

What will happen to my vehicle after I have been involved in a motor vehicle accident and who will be responsible for the damages? Over and above the emotional and economical tension it causes a person and his/her family, there will always be legal principles that apply.

What does the law say?

The most prominent legal field that will apply when a person is involved in a motor vehicle accident is the law of delict. The law of delict will play an important role in determining who will be liable for the damages, if any. If the damages were caused due to the intentional or negligent conduct or omission of somebody else (the third party), the third party would be liable for the damages the car owner suffered. The third party is, however, not without a few defences, but that falls outside the scope of this article.

Litigation

An important legal doctrine to be observed in litigation is the doctrine of subrogation as it applies in the law of indemnity insurance. It is an accepted principle of indemnity insurance law that when an insurer fully indemnifies an insured party in the case of loss caused by a third party, the insurer has a claim against the third party in the name of the insured. The policy behind this doctrine is to prevent the insured party from receiving double compensation from both the insurer and the third party.

Insurance claims

From a procedural point of view, the insurer obtains the right to institute legal proceedings against the third party in the name of the insured party if the insured party still has an unsatisfied claim against the third party. This principle allows the insurer to become dominus litis (master in the proceeding), but only in name and on behalf of the insured party. The insurer becomes entitled to conduct the proceedings in the name of the insured party, provided that the insurer has fully indemnified the insured party and has also indemnified the insured party against the risk of legal costs which may arise from the proceedings. The insurer has no independent claim against the third party, but simply enforces the claim of the insured party for the insurer’s own benefit.

Conclusion

In summary, the car owner will be able to hold the third party liable irrespective if he/she has insurance or not. If the car owner has insurance they will be able to claim the damages from the insurance. If he/she does, the insurance will be able to recover the loss in the name of the insurer from the third party. The relationship between the insured and the insurance is a contractual relationship and if any party fails to perform in accordance with the agreement, that party will be liable for breach of 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.

WHEN DOES A CLAIM PRESCRIBE?

The issue of the legal nature of a vindicatory CCC and whether it gives rise to a debt that is subject to the three year extinctive prescription period has been decided differently by different divisions of the High Court. On 28 May 2015 the Supreme Court of Appeal came to a final decision in Absa Bank v Keet[1] as to whether claims under the actio rei vindicatio prescribe after 3 years or not.

One of the first questions that your attorney will ask you when you consult him is when your cause of action arose so that they can ascertain whether your claim has prescribed. If your claim is prescribed, it means that you no longer have any legal remedies available to you. Claims arising from a debt prescribe after three years and the rules of prescription are set out in the Prescription Act, 1969.

There is one specific claim where the application of the 3 year prescription period was uncertain and this was in regard to claims under the actio rei vindicatio. This is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff, and it may only be used when the plaintiff owns the thing and the defendant is impeding the plaintiff’s possession of the thing.

A rei vindicatio action is often used in disputes surrounding instalment sales where ownership only passes on the payment of a last instalment or where instalments are not duly paid. This is mostly coupled with a claim for cancellation. In other words, the seller cancels the sale agreement and claims return of the thing sold.

In the case of Absa Bank v Keet[2] the seller of a motor vehicle attempted to cancel the sale agreement and to claim the return of the vehicle sold. The purchaser of the vehicle responded to this claim with a special plea stating that the claim for the return of the vehicle had prescribed.

The reason for stating that the claim had prescribed was that the agreement on which the seller sued would have come to an end on the date on which he contended the amount outstanding became due and payable, and that it was more than 3 years since that amount became due.

In the case of Staegemann v Langenhoven[3] it was held that a vindicatory claim does not prescribe after three years. The High Court in the Keet case held that this case was wrongly decided because if Staegemann were correct, ‘the Bank could withhold its demand for the tractor for another decade or even longer, and then demand return of the vehicle so that it could calculate its damages’.

The Supreme Court of Appeal (SCA) in the Keet case had to decide whether the High Court was correct in holding that the seller’s claim for the repossession of its vehicle is a ‘debt’, which for the purposes of the Prescription Act prescribes after three years.

The SCA made an important distinction between extinctive prescription and acquisitive prescription to come to its final decision. Extinctive prescription deals with a creditor’s right of action against a debtor, which is a personal right. On the other hand, acquisitive prescription deals with acquiring real rights to property (in terms of the Prescription Act a person can acquire ownership of property after 30 years of uninterrupted possession). Real rights are primarily concerned with the relationship between a person and a thing and personal rights are concerned with a relationship between two persons.

The person who is entitled to a real right over a thing can, by way of vindicatory action, claim that thing from any individual who interferes with his right. Such a right is the right of ownership. If, however, the right is not an absolute, but a relative right to a thing, so that it can only be enforced against a determined individual or a class of individuals, then it is a personal right.[4]

The Supreme Court of Appeal is therefore of the opinion that to consider a vindicatory action as a ‘debt’ which prescribes after three years is contrary to the scheme of the Act and that this would undermine the significance of the distinction which the Prescription Act draws between extinctive prescription and acquisitive prescription. In other words, what the creditor loses as a result of operation of extinctive prescription is his right of action against the debtor, which is a personal right. The creditor does not lose a right to a thing.

The SCA has therefore made it clear that to equate the vindicatory action with a ‘debt’ has the unintended and absurd consequence in that by way of extinctive prescription the debtor acquires ownership of a creditor’s property after three years instead of 30 years. The vindicatory action therefore does not prescribe after three years.

[1] (817/13) [2015]  ZASCA 81 (28 May 2015)

[2] (817/13) [2015] ZASCA 81 (28 May 2015)

[3] Staegemann v Langenhoven & others 2011 (5) SA 648 (WCC).

[4] Wessels Law of Contract in South Africa 2 ed vol 1 p 3-4.

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.

SHOULD I USE A PROTECTION ORDER OR A HARASSMENT ORDER?

There are people who suffer emotional and physical abuse on a daily basis but are not quite sure what they can do to prevent it. There are two options available to them. They can either apply for a protection order or apply for a harassment order. However, many people do not know the difference between the two and which order would suit their situation.

What is a protection order?

A protection order is described as being a form of court order that requires a party to do or to refrain from doing certain acts. These orders flow from the court’s injunction power to grant equitable remedies in these situations. The following is required to be present when applying for a protection order:

  1. Need to show a pattern of abuse.
  2. It has to be a form of domestic violence, which includes:
  3. Physical violence
  4. Sexual violence
  5. Financial violence
  6. Emotional/verbal violence

The violence needs to be directed at the person who wants to make the application.

A protection order forms part of the Domestic Violence Act. This means that the abuse needs to be between persons that live in the same house, like brother and sister, or mother and father, etc. An application is made for a protection order and thereafter a return date is set. At the return date the applicant can change their mind and ask that the order be removed. If not, the order is granted, and it is binding for life. If the respondent breaches the protection order, he/she may receive up to five years’ imprisonment. If the applicant applies for a protection order under false pretences the applicant may receive up to two years’ imprisonment.

The application for a protection order is an ex-parte application, which means that the application can be made without having the respondent at court. This can cause problems in the instance where the respondent is innocent, but does not have a chance to defend himself/herself.

What is a harassment order?

If you’ve been the victim of abusive or threatening behaviour by someone other than a person living with you, or with whom you have a domestic relationship, it may be harassment. There are different things you can do if you’re being harassed, such as applying for a harassment order. The following is important to know about harassment orders:

a) No pattern is needed, and a first offence can be sufficient for a Harassment Order.
b) No relationship is required, and it can be against someone you don’t even know.
c) No violence is required.
d) Harassment includes: following, messaging, unwanted packages, letters, psychological harm, physical harm, financial harm, etc.

If you decide to apply for a harassment order without knowing who it is against, the court has the power to order a police official to investigate the matter. The application for a harassment order takes place in open court, which means that it is not private. This can sometimes prevent victims from making the application. Once a harassment order is granted, it is binding for five years. If the applicant wants to withdraw the order, the court must be satisfied that the conditions have changed. Breach of a harassment order can result in five years’ imprisonment, which is the same punishment for applicants who make the application under false pretences.

It is important to know that there are remedies available to victims who are in abusive relationships. Whether it is emotional, physical or financial abuse by someone you know or stalking and harassment by someone you don’t know.

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.