MY TENANT FAILED TO PAY RENT: CAN I KICK HIM OUT?

If your tenant has failed to pay his or her rent, it can be tempting to simply kick them out yourself and change the locks. However, do so would be considered illegal, even if the tenant has become an illegal occupant. The reason is because of the PIE Act.

In sum, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (1998) provides procedures for eviction of unlawful occupants and prohibits unlawful evictions. The main aim of the Act is to protect both occupiers and landowners. The owner or landlord must follow the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) (except in areas where ESTA operates) if they want to evict a tenant.

Who is covered?

Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an ‘occupier’ in terms of the Extension of Security of Tenure Act

When is an eviction lawful?

  1. For an eviction to happen lawfully, certain procedures must be followed. If any one of them is left out, the eviction is unlawful. So, if an owner wants to have an unlawful occupier evicted, they must do the following:
  2. give the occupier notice of his/her intention of going to court to get an eviction order.
  3. apply to the court to have a written notice served on the occupier stating the owner’s intention to evict the occupier.
  4. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.

After a landlord intrusts their attorney to commence eviction proceedings, the following happens:

  1. Typically, (except in a case of urgency, e.g. if the tenant is maliciously damaging the leased premises because he got notice to vacate) the attorney will call on the tenant to remedy the breach (usually failure to pay rent on time);
  2. If the tenant fails to deal with the demand, the tenant will be considered to be in illegal occupation of the property;
  3. The attorney then applies to court for permission to begin the eviction process. The court gives a directive as to how and on whom notice of eviction should be served;
  4. The attorney doesn’t give the tenant notice at this time;
  5. The application to court sets out the reasons for the application and the personal circumstances of the occupants;
  6. If the courts are satisfied that it is fair to evict the tenant and all persons occupying the property with him, it gives a directive as to how the application for eviction must be served;
  7. The sheriff then serves the notice of intention to evict on the tenant and the Local Municipality;
  8. The occupants have an opportunity to oppose the application, and explain why they should not be evicted;
  9. If there is opposition, the matter gets argued before a magistrate or judge, who decides whether an eviction order can be granted, and if so, by when the occupants should vacate the property within a stipulated time;
  10. If the tenant does not oppose, the court will grant the eviction order;
  11. If the tenant fails to move, the attorney will apply to Court for a warrant of ejectment to be issued by the Court. This process can take a further three to four weeks.

Reference:

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)

I REPAY MY DEBTS, WHAT CAN I DO?

If you are over-indebted, in other words, unable to repay all you credit agreements. Your biggest concern might be not getting dragged off to court or having all your possessions taken away. So what can you do to get out of your mess?

Debt review

Before you receive a summons for your outstanding debt you can opt for debt review. It’s important to take this option if you believe you won’t be able to pay your debts because once you receive a summons it’s too late. Debt review was introduced in 2007 with the National Credit Act (NCA).

During the first 60 business days from the date of your application to be placed in debt counselling, legal action may not be taken against you in respect of debts that are “under review”. Therefore, if you’ve opted for debt review, you don’t have to stress about someone knocking on your door, yet.

What if you don’t pay your debts?

If you decide not to go for debt review and fail to pay your outstanding debt, the creditors could take the following actions against you:

  1. Issue a summons and obtain judgement against you for the outstanding debt, interest and their legal costs;
  2. Send the sheriff to attach your property, such as your car;
  3. Instruct the sheriff to sell the attached property at an auction;
  4. Obtain a court order that your employer deduct an amount an amount from your salary and pay it over to the creditor (emolument attachment order).

Debt review process

If you decide to go for debt review, a registered debt counsellor has to first assess your financial obligations. This is basically what you have to pay every month. Some of your financial obligations may be due to reckless credit. This is when a creditor grants you credit without checking if you can afford it first. However, if you lied in your credit application, your financial obligations won’t be considered reckless credit.

If you are over-indebted the debt counsellor will draw up a repayment plan to rearrange your debt obligations. If your creditors reject the repayment plan, your debt counsellor can refer the matter to a magistrate’s court with a recommendation.

The court could make the following orders:

  1. You are not over-indebted and must continue making regular payments. If you don’t the creditor may take legal action to force you to pay.
  2. You are over-indebted and reckless credit was granted to you. The court may relieve you of some or even all of the payments under a reckless credit agreement depending on what is fair and just. The court may also postpone the date of payment under reckless credit agreements.
  3. You are over-indebted and must rearrange your payment obligation.

Hopefully, the creditors accept the repayment plan, or a magistrate’s court agrees to the repayment plan. The Payment Distribution Agent (PDA) will then channel your revised payments to your creditors. The payments are made directly to the PDA.

Once you’ve successfully paid all your debts, the debt counsellor will issue you with a clearance certificate. They will also notify the credit bureaus that you are no longer in debt counselling.

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)

WHEN CAN SOMEONE BE RELEASED ON BAIL?

People are often outraged when they hear of accused persons who have been released on bail. There are several factors to be considered when deciding whether someone should be let out on bail or not.

Who is allowed bail?

According to section 35(1)(f) of the Constitution[1] 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. This provision sets out that the law cannot take away an innocent person’s freedom arbitrarily, but recognises that in certain circumstances it may be in the interests of justice to take away or limit this freedom.[2]

When can bail be refused?

The next question that arises is how we know when the refusal to grant bail is in the interests of justice. According to section 60(4) of the Criminal Procedure Act[3] (CPA), the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

  1. Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit certain offences;
  2. Where there is the likelihood that the accused, if released on bail, will attempt to evade trial;
  3. Where there is the likelihood that the accused, if released on bail, will attempt to influence, intimidate or conceal witnesses or destroy evidence;
  4. Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;
  5. Where there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.[4]

In considering whether the grounds in (a) to (e) above have been established, various factors, which are set out in Sections 5 – 9 of the CPA, may be taken into consideration, these include the following:

  1. The degree of violence towards others implicit in the charge;
  2. The accused’s ties to the place at which he or she is to be tried;
  3. Assets and travel documents held by the accused;
  4. The accused’s relationship with the witnesses and the extent to which they could be influenced;
  5. Whether the accused supplied false information during his or her arrest or bail proceedings;
  6. Any previous failure to comply with bail conditions or indications that he or she will not comply with any bail condition;
  7. Whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community; and
  8. Whether the shock or outrage of the community might lead to public disorder if the accused is released.[5]

The court decides whether the accused should be let out on bail by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, and must take into account, inter alia, the period for which the accused has been in custody; the probable period of detention until the end of the trial if bail is not granted; the reason for any delay in the trial and any fault on the part of the accused; any impediment to the preparation of the accused’s defence due to the detention of the accused, and the accused’s state of health.[6]

When dealing with Schedule 5 and 6 offences the accused will be detained in custody unless the accused can show the court that it is in the interests of justice or that exceptional circumstances exist which permit his or her release, respectively. [7]

Conclusion

It’s clear that the court must weigh up many factors against each other and although we do not always understand why accused persons are released on bail, anyone would want a fair bail application if they found themselves in a similar position.

References:

  • The Constitution of the Republic of South Africa, 1996
  • J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86
  • The Criminal Procedure Act 51 of 1977

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 YOU NEED TO KNOW ABOUT ESTATE PLANNING

The main aim of planning your estate is to ensure that as much of the accumulated wealth is utilised for your own benefit and for the benefit of your dependents on your death.

What is estate planning?

“Estate planning” has been defined as the process of creating and managing a programme that is designed to:

  1. Preserve, increase and protect your assets during your lifetime;
  2. Ensure the most effective and beneficial distribution thereof to succeeding generations.

It is a common misconception that it revolves solely around the making of a Last Will and Testament, or the structuring of affairs so as to reduce estate duty. Each person’s estate is unique and should be structured according to his/her own unique set of circumstances, goals and objectives.

What is liquidity?

The lack of liquidity on the date of death may cause for the deceased’s family members and dependents to suffer hardship, as certain assets might be sold by the executor to generate the cash needed.

Liquidity means that there should be enough cash funds to provide for:

  1. Paying estate duty;
  2. Settling estate liabilities and administration costs;
  3. Providing for other taxation liabilities that may arise at death, such as capital gains tax.

Technically the estate is frozen until such time as the Master of the High Court has issued Letters of Executorship.

Having no will…

If you die without executing a valid Last Will and Testament, your estate will be dealt with as an intestate estate, and the laws relating to intestate succession will apply. The Intestate Succession Act determines that the surviving spouse will inherit the greater of R250 000 or a child’s share. A child’s share is determined by dividing the total value of the estate by the number of the children and the surviving spouse. If the spouses were married in community of property, one half of the estate goes to the surviving spouse as a consequence of the marriage, and the other half devolves according to the rules of intestate succession. If there is no surviving spouse or dependents, the estate is divided between the parents and/or siblings. In the absence of parents or siblings, the estate is divided between the nearest blood relatives.

The executor remuneration

Executor’s remuneration is subject to VAT where the executor is registered as a vendor.

Where the value of the estate exceeds R3.5 million, estate duty will become payable on the balance in excess of R3.5 million, with the exception of the property bequeathed to a surviving spouse, which is exempt from estate duty and/or capital gains tax.

Land

Section 3 of the Subdivision of Agricultural Land Act prevents the subdivision of agricultural land, and such land being registered in undivided shares in more than one person’s name is subject to Ministerial approval.

Minor children

A minor child is a person under the age of 18 years of age. Any funds bequeathed to a minor child will be held by the Guardian’s Fund, which falls under the administration of the Master of the High Court. These funds are not freely accessible, and are usually invested at below market interest rates. It is thus advisable to provide for minors by means of a trust.

Member’s interest

The Close Corporations Act provides that, subject to the association agreement, where an heir is to inherit a member’s interest (in terms of the deceased’s Will), the consent of the remaining members (if any) must be obtained. If no consent is given within 28 days after it was requested by the executor, then the executor is forced to sell the member’s interest.

Estate duty

Section 3(3)(d) of Estate Duty Act determines that where an asset is transferred to a trust during an estate planner’s lifetime, yet the estate planner, as trustee of the trust retains such power as would allow him to dispose of the trust asset(s) unilaterally for his own or his beneficiaries' benefit during his lifetime, then such asset(s) may be deemed to be property of the estate planner and included in his estate for estate duty purposes.

In community of property

Where the parties are married in community of property, the surviving spouse will have a claim for 50 percent of the value of the combined estate, thus reducing the actual value of the estate by 50 percent. The estate is divided after all the debts have been settled in a deceased estate (not including burial costs and estate duty, as these are the sole obligations of the deceased and not the joint estate). Only half of any assets can be bequeathed.

Life insurance

The proceeds from life insurance policies can be used to:

  1. Generate income to maintain dependents while the estate is dealt with;
  2. Pay estate expenses: funeral, income tax, estate administration, estate duty.

All proceeds of South African “domestic” policies taken out on the estate planner’s life, where there is no beneficiary nominated on the policy, will fall into his estate on his death.

Where a beneficiary is nominated on the policy, the proceeds will be deemed property for estate duty purposes, even though they are paid directly to the beneficiary (subject to partial exemptions based on policy premiums).

Policies which are exempted from inclusion for estate duty purposes are buy and sell, key man policies, and those policies ceded to a spouse or child in terms of an antenuptial 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)