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Month: March 2015

Are there limitations on ownership rights?

March 9, 2015 / / Comments Off on Are there limitations on ownership rights?

A1BIt is a recognised principle of property law that ownership does not confer absolute and unlimited entitlement on the owner, but that various limitations exist in the interest of the community and for the benefit of other people.

The most important limitation on the owner in the interest of the community as a whole is the payment of taxes to the state in respect of certain movable and immovable property. In the case of immovable property several measures make land available to a larger section of the community, which implies that the restitution of land rights and the provision of land will require measures for expropriation. Furthermore, a number of provisions deal with environmental conservation and physical planning which limit the owner’s entitlement in the interest of the community. Limiting measures in the case of moveable property prohibit the use of such property to the detriment of the community, for instance motor vehicles, fire-arms and dependence-producing substances.

There are also measures which limit the owner’s entitlement, not in the interest of the community, but in the interest of other individuals. The best known example in this case is neighbour law, which implies that the owner may not use his land in such a way that it constitutes an unreasonable burden on his neighbours. The criterion of reasonableness determines that, in these circumstances, the owner of immovable property may exercise his entitlements within reasonable bounds, and that the neighbouring owner or occupier must tolerate the owner’s exercise of his entitlements within reasonable bounds.

Other examples of the application of the criterion of reasonableness in the case of neighbour law are the obligation to lateral and surface support, measures dealing with encroachments, the mutual obligation regarding the natural flow of water and the elimination of danger.

Other people besides the owner may acquire entitlements (for instance use rights) in respect of the moveable or immovable property of the owner. Holders of limited real rights acquire entitlements in respect of the asset, which limits the owner’s ownership (dominium) as they burden the property. It is therefore enforceable against the owner and his successors in title. Certain creditors’ rights may also result in people acquiring entitlements in respect of the owner’s property. These rights are, however, only enforceable against the owner personally and do not burden the property as such, therefore it is not enforceable against successors in title.

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.

To prosecute or not

March 9, 2015 / / Comments Off on To prosecute or not

A2BAn action may be a crime or a delict but where your actions were trivial, a court may decide not to prosecute you or a judge will not entertain a claim against you due to the de minimis non curat lex rule.

If you find yourself charged with a minor crime such as theft for taking one small sweet from a store then the de minimis non curat lex rule (de minimis), which means “the law does not concern itself with trifles”, may come in handy for you.

De minimis is a decision of a court to allow unlawful conduct to go unpunished due to its triviality. An example of such a decision is where the Appellate Division in S v Kgogong[1] refused to convict a person of theft because the accused stole a worthless piece of paper. Another example would be from the case of S v Dane[2] where a person accused of malicious damage to property was acquitted because all he had done was to cut a small portion of another person’s hedge.

The application of the de minimis maxim is very limited in regard to statutory offences. This was discussed in the case of DPP (EC) v Klue[3] in which the High Court overturned the Magistrate’s decision that the offence of driving a vehicle on a public road with a blood alcohol concentration exceeding the prescribed minimum was de minimis.

The High Court held in the abovementioned case that the aims and objectives of the legislation containing the offence are important and that the Road Traffic Act,[4] in particular the provision offended, is aimed at reducing road accidents. The High Court also held that there was no room for the Magistrate to apply the de minimis maxim because the minimum amounts had already been determined after careful consideration by the Legislature.

The de minimis maxim also applies to criminal assault charges and delictual claims. In regard to delictual claims, when a person’s bodily integrity has been wrongfully and intentionally infringed, he or she can claim satisfaction with the actio iniurarum unless the de minimis rule applies to his or her claim. In regard to criminal assault charges trivial assaults, such as a slap on the back or a shove in a crowd may be disregarded in terms of the de minimis rule. This would have to be seen in context of the nature of the act, especially where one is dealing with sexual assault, as a mere touch could be very serious and in these circumstances the de minimis rule would not come into play.

The purpose of the de minimis rule is to avoid the burdening of the courts with minimal complaints which would result in wasted costs, resources and time. It is further to avoid the situation where more serious crimes and delictual claims take even longer to be dealt with due to these trivial issues taking up the court’s time. This will result in the criminal justice system and the court system being brought into disrepute for not being able to deal with serious matters efficiently. 

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.

Bibliography

  • Burchell J: Principles of Criminal Law 2006 (3rd ed) 355 – 356
  • S v Kgogong 1980 (3) SA 600 (A)
  • S v Dane 1957 (2) SA 472 (N)
  • DPP (EC) v Klue 2003 (1) SACR 389 (E)
  • Road Traffic Act 93 of 1996

[1] 1980 (3) SA 600 (A)

[2] 1957 (2) SA 472 (N)

[3] 2003 (1) SACR 389 (E)

[4] 93 of 1996

The sequestration process

March 9, 2015 / / Comments Off on The sequestration process

A3BThe sequestration process involves a Court Application. The Applicant in the Application is either yourself for your own sequestration (voluntary surrender) or the Applicant is one of your creditors (either a friendly or aggressive creditor).

The applications are similar and although there are some different requirements for each, the result is the same.

Voluntary surrender

Voluntary surrender refers to the process whereby a natural person can make an application to place him/herself under an order for sequestration.

A person is insolvent if his/her liabilities exceed his/her assets. In such a case he/she can apply for voluntary surrender of their estate. Anybody can apply for voluntary surrender at any stage as soon as he/she is insolvent, even if they have been or are under debt counselling, for example.

The person who wants to sequestrate him/herself, will depose to an Affidavit which explains why he/she claims he/she is insolvent. This will be drafted by the Attorneys who will bring the application on behalf of the Applicant. As soon as the Affidavit is signed, the application will be issued at Court and a Court date is assigned. The Applicant does not have to appear in Court as the Advocate appears on his/her behalf.

If the Court grants a provisional order on the first Court date, the matter will be postponed for approximately one month. During that month notice will be given to all creditors, and if on the return date no-one has opposed the application, the order will be finalised and the Applicant’s estate will be sequestrated.

Compulsory sequestration

Applications are also made by way of a Court application; however, in this case the Applicant will be a creditor of the debtor. If it is a creditor with whom the debtor does not have a good relationship, we refer to it as an “aggressive” sequestration (for example the bank).

However, the banks seldom bring sequestration applications against the average debtor as it is much cheaper and easier for them to follow the collection procedures: attach property and sell it and/or attach your salary.

If it is a creditor with whom the debtor has a good relationship, we refer to it as a “friendly” sequestration (for example a family member or a friend to whom you owe money).

Aggressive (“unfriendly”) sequestration

Where an unfriendly creditor brings a sequestration application against a debtor, we refer to it as an aggressive sequestration. It is also a forced sequestration as opposed to voluntary surrender.

The creditor who brings the application must have established a claim against the debtor; in other words, the debtor must indeed owe the creditor money. A second requirement is that there must also be a benefit to creditors. Thirdly, the debtor must have committed an act of insolvency.

If a creditor brings an aggressive application against a debtor, the debtor can oppose such an application if he/she is not insolvent or if there is another reason why the order should not be granted.

Process for “unfriendly” and “friendly” sequestrations

The process for both these applications is the same and it is only the Applicant that differs.

As with voluntary surrender, an Affidavit will be given by the creditor to explain why he avows that the debtor owes him/her money. He will attach proof thereof (contract/statement) and also proof that the debtor has committed an act of insolvency (where the debtor has written a letter to say that he/she cannot pay the debt). In both instances the Applicant must prove that there will be a benefit to creditors to have the debtor sequestrated.

Once the Affidavit has been signed, the necessary documentation will be drafted, issued at Court and a Court date assigned. As soon as this is done, the documents will be served on the debtor, employees of the debtor, Master of the High Court and the South African Revenue Services by the Sheriff. The provisional order should also be given to all creditors above R5 000.00 by way of registered post. If the application is not opposed, a final order will be made for the sequestration of the debtor/Applicant.

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.

Steps of the criminal procedure

March 9, 2015 / / Comments Off on Steps of the criminal procedure

A4BThe purpose of criminal procedure is to ensure the security and safety of the public through effective investigation of crimes so that criminals can be identified and brought to justice.

First the crime is reported to the police station. Thereafter the police opens a docket and the crime is investigated by the investigating officer. Next the docket is sent to Court and the prosecutor must make a decision as to whether further investigation is necessary. The National Prosecuting Authority (NPA) decides whether to prosecute or not. If the NPA decides not to prosecute, it is most likely because the case is not strong enough, for example if there is too little evidence available. If the NPA decides that the accused will be prosecuted, the case is sent to Court for indictment.

The prosecutor may decide on diversion of the case as an alternative decision. Diversion is a system for first time offenders charged with petty crimes. They are given a chance to do community service, pay for damages resulting from the crime, undergo treatment for alcohol or drug problems, and/or counselling for antisocial or mentally unstable behaviour. When the case is heard in Court, the accused may apply to be released on bail. The effect of bail is that an accused who is in custody is released from custody upon payment of the amount of money determined for his or her bail, or the furnishing of a guarantee to pay it. He/she must then appear at the place and on the date and at the stipulated time determined for his or her trial, or to which the proceedings relating to the offense of which the accused is released on bail. The Constitution provides for the following: “Everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions.”

At the start of a trial, the prosecutor states the charges laid against the accused. The accused then pleads to the charge, which might be guilty or not guilty. If the accused pleads not guilty, the case must proceed to trial. The matter may be postponed to obtain further evidence or to get a lawyer for the accused.

On the day of the trial the prosecutor will first call witnesses to testify so that it can be proved that the accused is guilty beyond reasonable doubt. Thereafter the accused or his/her attorney will also call witnesses to testify or produce evidence. After both sides have been heard, the presiding officer must make a decision as to whether the accused is guilty or not. If the accused is found guilty, the accused will be sentenced by the presiding officer. The Court may consider other sentencing options besides imprisonment or fines. If sentenced to prison, the accused may be released on parole under certain circumstances.

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.

Reference list:

  • Joubert, 2001, Criminal ProcedureHandbook.
  • TheNationalProsecuting Authority ofSouthAfrica, 2008, Understanding theCriminal Justice System.
  • The ConstitutionofSouthAfrica, 1996.

 

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