THE CONSEQUENCES OF DRINKING AND DRIVING

With the festive holidays fast approaching, it’s necessary to address the consequences of drinking and driving. Unfortunately, the holidays 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.
  • 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.
  • 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.

References:

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)

RENTING PROPERTY TO FOREIGNERS

Renting property in South Africa is a straightforward process. The country has a vast selection of rental accommodation including bachelor flats in apartment blocks, Victorian cottages, stand-alone houses with big gardens, and semi-detached units in modern townhouse complexes.

In South Africa, the right of a foreigner to purchase immovable property was restricted in the past by the Aliens Control Act. These restrictions were uplifted in 2003 by the new Immigration Act (“the Act”) which repealed the Aliens Control Act and many of its restrictive provisions and now clearly defines who a legal foreigner is and who is not. In short, a legal foreigner is a person in possession of a valid temporary residence permit or a permanent residence permit approved by the Department of Home Affairs.

The new Act makes provision for various temporary residence permits to be issued to foreigners, including amongst others:

  • A visitor’s permit
  • A work and entrepreneurial permit
  • A retired person permit

In principle, a landlord or tenant can legitimately lease or sell immovable property to any person recognised under the Act as a legal foreigner.

That said, foreigners working in South Africa with a legal work permit, are not regarded as “non-residents” by the South African Reserve Bank. They are considered to be residents for the duration of the period of their work permit and are therefore not restricted to a loan of only 50% of the purchase price.

It is also important to take note that the Act criminalizes the letting or selling of immovable property to an illegal foreigner by making this transaction equivalent to the aiding and abetting of an illegal foreigner and is such an act classified as a criminal offence in terms of the Act.

In conclusion, a legal foreigner may let or buy immovable property in South Africa, provided that he is the holder of either a legal temporary residence permit or a permanent residence permit approved by the Department of Home Affairs. Ensure that you enquire from your potential tenant or purchaser whether they are legally present in South Africa and obtain the necessary proof from them before entering into any transaction with a foreigner. Also, take account of the restrictions on local financing, particularly where the procurement of financing is a condition precedent to the agreement.

References:

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

If 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.

References:

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)

HOW TO MANAGE YOUR DEBT

Alecia had too much debt and her expenses outweighed her income. She decided to open a new bank account into which her salary could be paid, which would ensure that she could manage her salary before her monthly debit orders went off.

Alecia thought it would be a good idea to pay her small debts off first and then begin with the larger debts. Unfortunately, this resulted in her not making any payments at all on her home loan and credit card. The bank threatened to blacklist her and sent her a summons.

What will the bank do?

The bank then made an application in court for an order that made it compulsory for her to pay the amount which the bank set out; this order is called an Emoluments Attachment Order (EAO) or garnishee order. An EAO is granted in terms of s. 65J of the Magistrates’ Courts Act 32 of 1944 and orders an employer (referred to as a garnishee) to make deductions from a debtor’s salary or wages and pay these over to the creditor or its attorneys. This amount was much greater than Alecia could afford and left her with no income for the rest of her monthly debt payments. She was thus put in a worse financial position than before.

Debt counselling

Debt counselling is a process of assisting consumers that are experiencing debt-related problems and are having difficulty making their current monthly payments. It provides budget advice, restructuring of payments, negotiating on your behalf with credit providers, monitoring payments and providing aftercare services. If Alecia had known about debt counselling sooner she would not be stuck in the position she is now facing. It is important to educate people about debt counselling, especially in a country where debt is granted so easily and yet so hard to pay back.

It is the duty of the Debt Counsellor [who is registered with the National Credit Regulator (NCR)] to assess whether the consumer is over-indebted by weighing the income and expenses and then taking into account statutory and non-statutory deductions as well as existing monthly debt payments. If the calculation results in a negative balance, the consumer is declared over-indebted. The debt counsellor provides a proposal that lowers the debt payments and increases the cascades (the number of months allowed for repayment of the debt, inclusive of interest), in order for the consumer to be able to manage his/her debt while paying it off at the same time. An order is then granted in court and sent to the credit providers, and the consumer can no longer incur any new debt. Once the debt is paid off, the consumer is given a clearance certificate and he/she has all that extra income to buy goods in cash.

What if the bank has already taken action?

Unfortunately, it was too late for Alecia as legal action was already taken against her. The same applies if a termination letter is sent in terms of s.129 of the National Credit Act. It is important for people to know that there is a way to manage their debt, but they need to acknowledge that they are in financial trouble before they are placed in a situation like Alecia. It may be too late for Alecia, but hopefully it won’t be too late for others.

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)

HOW TO APPLY FOR SPOUSAL MAINTENANCE?

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

An application for maintenance can be made against a defendant (person who must pay maintenance) at any Maintenance Court (“court”) in the district where the complainant (person who applies for maintenance) or the child, on whose behalf maintenance is claimed, resides or works.

The parents, guardians and/or caregivers of a child can apply for maintenance on behalf of such a child.

What should a person take to court when applying for maintenance?

  1. Identity document of the complainant.
  2. Complainant’s contact details, such as telephone numbers and home and work addresses.
  3. If maintenance for a child is claimed, the birth certificate of that child.
  4. If maintenance for the spouse is claimed, the marriage certificate or divorce order where maintenance order was granted.
  5. A full list of expenses and any proof of same, such as receipts.
  6. The complainant’s payslip and proof of any other income.
  7. As much detail as possible regarding the defendant, such as telephone numbers, home and work addresses, list of known income and expenses, and so on.

What happens after the application has been made?

  1. The maintenance officer will inform the defendant of the application and will hold an informal enquiry with the complainant and defendant being present.
  2. The defendant must take any proof of his/her income and expenses to the informal enquiry.
  3. The purpose of the informal enquiry is to assist the complainant and the defendant in reaching a settlement.
  4. If a settlement is reached, an agreement will be entered into between the complainant and the defendant, which will be made an order of court.
  5. If a settlement cannot be reached, the maintenance officer will place the matter before court for a formal enquiry to be held.
  6. The court will consider the facts and evidence of the claim and decide, by way of a maintenance order, whether maintenance should be payable and the amount of such maintenance.
  7. The complainant and the defendant must both be present at the informal and formal enquiry, and will be allowed to have legal representation.
  8. If the defendant fails to appear at the formal enquiry in court, an order may be given in his/her absence.
  9. It will not be necessary for the complainant and/or defendant to appear in court if they consent in writing to the maintenance order being granted.

References:

  • Justice.co.za
  • Legalwise.co.za

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)

HOW DO I GET COPYRIGHT ON SOMETHING?

Whenever someone creates a piece of original work based on their own idea, they are automatically granted copyright on that creation. This includes work produced by authors, musicians, computer programmers, artists etc.

Once someone has taken their idea and turned it into material form, they will immediately own the copyright on their work without having to register it or inform someone else, the only exception to this is cinematograph films, which can be registered. After a musician has written and recorded a song, for instance, it would have automatically become copyrighted with the musician being the copyright owner. Things that are part of the public domain do not fall under copyright. A public speech by a politician or public lecture by an author falls within the public domain so would not have copyright. A newspaper journalist, for example, would be able to reproduce and quote from a public lecture without the speaker’s permission.

What if there was more than one person involved?

The person who has copyright ownership over a product differs for the type of creation. In the case of a literary work, such as a novel, it would be the person who first created the work, the author. However, if it is a film, the person who made all the arrangements of the film, such as the producer, would own the copyright, and not the actors and actresses. If a person created something under the proprietorship of someone else or a business, then the copyright belongs to that person or entity, not the creator.

Who will protect my copyrighted work?

All countries who have signed the Berne Convention will automatically protect the copyright of any original work that someone produces. That means if you create a painting here in South Africa, it will still be copyright protected in another country, such as America, that’s part of the Berne Convention.

Has someone violated my copyright?

If another person has made photocopies of your work for themselves only, then it’s not a copyright infringement. As mentioned earlier, recording, copying or reproducing a public speech is also not a copyright infringement. In the academic world, it’s common for people to use each other’s material or research. If the original author and their work is properly acknowledged by being cited, then no infringement has happened. However, if the original work has not been properly cited, it would be considered a serious copyright infringement, or plagiarism.

So when do I know if someone has infringed on my copyright? If another person has used or reproduced your original work to share with others for profit, without your permission, then it’s a copyright infringement. Taking another person’s song and selling it online without paying royalties or informing them, for instance, would be a serious copyright infringement. Another example is if someone takes the literary or academic work of the original author, and puts their own name to it, making it seem as if they were the original author.

What is the duration of copyright?

Copyright doesn’t last forever. However, they do last for an exceptionally long time. Copyright lifespans also differ depending on the work produced. Copyright on literary work lasts for 50 years after the death of the author. Copyright over films lasts for 50 years after the date the film was first shown. Computer programs have a copyright that lasts for 50 years after the first copies of the program were made available.

In short, if you have created something original, such as a song or painting, you don’t have to figure out how to protect it. The law automatically protects you as the original creator of your work. If someone does try copy your work without your permission, you don’t need to worry. Your claim on your song, book, painting, program etc. was set the moment you created it.

References:

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)

CHILD MAINTENANCE AND FREEDOM OF TESTATION

Is a testator entitled to disinherit a child and if so, will the child have a claim for maintenance against the estate?

What is freedom of testation?

Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how their property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle, South Africa propagates total freedom of testation.

The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Furthermore, once the testator’s wishes have been established, a court is ordinarily bound to give effect to these wishes.

Are their restrictions?

However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Spouses and children may also be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.

Disinheritance

There is a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.

South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Testators are also not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.

Parental duty and maintenance

The parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906). The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.

It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.

Conclusion

Currently, South African law provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.

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)

CANCELLING A LEASE AGREEMENT EARLY

If you want to end your contract early, this can only be done “in situations where the Consumer Protection Act or Rental Housing Act apply” – or if there’s a clause in the contract that allows for early cancellation, or if both parties agree to it.

If, on the other hand, one of the parties wants to cancel because the other is in breach of the contract, then certain notice periods come into effect – the first of which being, of course, that the aggrieved party is required to “give written notice for the breach to be remedied. Failure to remedy the breach in the stipulated time period, will entitle the innocent party to cancel the lease and (where relevant) claim damages suffered from the offending party.”

A tenant has the RIGHT to cancel a lease agreement, be it in the 1st month, 4th month or second-to-last month of the lease agreement. He cannot be ‘punished’ for doing this and the cancellation does not constitute a breach of the lease agreement.

What must an agent do if a tenant decides to cancel?

  1. Obtain the cancellation in writing from the tenant.
  2. Ensure the cancellation gives the requisite 20 business days’ notice.
  3. Charge rental until the end of the 20 business days (even if this is not a full month’s rental).
  4. Log on to TPN and end the lease as at the end of the 20 business days.
  5. Keep in mind the lease now ends as at the end of that 20 business days.
  6. Should the tenant remains in the premises a new lease MUST be signed as once cancelled, a lease cannot be revived at law. If you fail to do this, you essentially have no long-term lease in place.
  7. Begin advertising the property immediately – the onus is on the agent/landlord to find a replacement.
  8. Keep all invoices from the advertising as this is one of the costs you may pass along to the tenant in terms of a ‘reasonable cancellation penalty’.

What can an agent charge the tenant that cancels early?

The idea behind this reasonable cancellation penalty is not to penalise the tenant, but to recover any actual loss suffered by the landlord as a result of the cancellation. The following cost could be applicable:

  1. Credit check costs for any prospective replacement tenants (even those who are not accepted);
  2. Advertising costs (only the actual amounts on the invoices);
  3. Rental – the exact number of days that the unit remains vacant after the tenant vacates.

It is important to keep in mind that all calculations of the penalty can only be made once a replacement tenant has been found. It must also be kept in mind that where a tenant cancels, for example, in month 10 or 11 of a 12-month lease, you cannot charge the tenant the full remainder of the lease as this would negate the cancellation. The principles behind cancellation penalties lie in our law of undue enrichment. A landlord/agent cannot make a financial gain or benefit off of a tenant’s cancellation.

References:

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)