Thank you for a great first four months, best wishes for the Festive Season and some advice for the Holidays

We have reached the end of this exciting year in which I have started out on my own.

To the clients that helped me to make this possible a big Thank You and best wishes for this Christmas and the coming New Year.

I am not quite done yet with this year, but sitting down totype this post has given me the chance to think back to August when I started working on the first couple of files. Since then it has not stopped being busy and for that I am grateful.

I am going to disappear from the 16th of December to the 28th and have still taken in new work. Clients are welcome to contact me next week until the 16th.

Now- the Holidays are upon us. Many of us have packed our bags and are heading off to the seaside. Those from the seaside are headed this way to speed in the Kruger Park from one lion sighting to the next and apparently those from Gauteng will be coming to the Kruger for target practice with their paintball guns...

And apparently our sons and daughters who have just finished matric shall be at the local holiday resorts giving their livers much needed practice for when they meet with serious alcohol at university...

From calls that I have recently received I deem it advisable to give out some free advice:

To the divorced parents who are at each other's throats about where the children are going this Christmas holiday:

The one who has R 13 000.00 for an urgent application is welcome to contact me. It does not have a guarantee of success, but I will at least be making a huge bonus this holiday (or maybe give some advocate one...). If you don't have that type of money now you should not involve a lawyer in your holiday arrangements. If the children end up having a ruined holiday because of a parent's conduct, however, that parent should not be surprised if the Children's Court intervenes and changes the arrangement for good (because the other parent came to see me).

To the ones that chose our local police cells as accommodation for the holiday season:

Bail costs money. If you want to pay bail you might as well want to pay me. So- just like anyone here in this country should know that it is unwise to go about fornicating without a packet of those balloons from Dischem you should also not go get into fights, drink and drive or break the law in any other way without carrying at least R 8000.00 with you. Just tell me in advance if the policemen said that he will let you go if he can get all of the money before I make the trip to the police station.


With those two pieces of advice I wish my clients and readers of this article a joyful Christmas and a New Year full of wonderous prospects.

And at the peril of revealing my off-time television habits I leave you with these words:


Take care of yourselves- and each other... 

To the ones who got left out- Making justice accessible to the Middle Class

Many of you know that I have served my articles with Legal Aid South Africa. This institution provides free legal services to the indigent. To the Legislator the "Indigent" are those individuals with a monthly income of R 5 000.00 or less.

Having started working for the first private sector law firm in 2010 has taught me how big a gap there is between the indigent who get free legal assistance from the State and the wealthy (let's say those who earn R 30 000.00 per month or more) who actually appoint attorneys.

I have seen bills from a number of attorneys in my time and have noticed how much more than the party and party tariffs get charged. For those who don't know what the party and party tariffs are- they are tariffs set by the rules of our courts.

The deviation was justified under the old rules of the Law Society of South Africa in that upward or downward deviation was allowed as long as it has been agreed to between the attorney and client.  





This is the main reason why you will not see any two law firms charging the same fees.

Members of the public may have been exposed to Magistrates' Court Litigation and High Court litigation and might know the difference in cost between these two forums. The irony in all this, however, is that the Bill of Rights in this country's Constitution has enshrined every person's right of access to the courts of law.




This is where I come in. The fee structure I have adopted apply to all clients. I have no such thing as a "special" tariff for Government clients or "wealthy" clients as opposed to those who have just entered the job market.

My fee agreement that I conclude with clients is also straightforward and easy to understand.

In the event of a bill becoming too high to be paid immediately arrangements can be made for payment in installments. Part of the preparation I do for this eventuality is finding out a client's monthly income at the beginning of my handling the matter.

So- if you need legal advice or assistance are regarded as being "too rich" for Legal Aid and "too poor" for the private firms- contact me and take a look at my fee structure. (No- I won't publish it here, but you are welcome to tell others once you have seen it.)

Debt Collecting- What you need to know

Since September 22, 1995 we no longer see any debtors in prison for failing to pay debts.

Recent developments seem to have placed debtors in a very favourable position, making South Africa seem like the best country in which to owe anyone money.

Because legislation and the common law has developed to a large extent to protect innocent debtors from exploitation by unscrupulous creditors it is important for creditors to know what is available to them.





It is very important to distinguish the types of debt we find as it determines the route you take towards obtaining a judgment against the debtor. It is only when one has a judgment in one's favour when the means of recovery herein become available.

Let's look at our different forms of debt:

1. Liquid Debt

2. Debt based on a Liquid Document.


"Now aren't the two things one and the same?" you may ask. Well- the answer is that category 2 falls under category 1, but category  does not fall under category 2. I shall understand if this confuses you without using even a word in Latin, but it is actually easy to explain.

1. Liquid Debt: This kind of debt mostly arise from business transactions. It is the price for goods bought, the fee for services rendered and of course- the rent due in respect of one's tenancy in the building in which you work or reside.

The amount that is owed does not still need to be determined, but can usually be seen on a price tag, in an invoice or in a written contract.

Legal proceedings to recover this type of debt are instituted with a summons. The proceedings that follow thereafter give the Defendant/ Debtor the opportunity to deny his/ her indebtedness and to give the grounds on which such denial is based.

If the Defendant wishes to do nothing about the matter within the period of ten working days from delivery of the summons to him/ her the Creditor/ Plaintiff can request that the Court grants judgment by default in his/ her favour.

If the Defendant does, in fact, defend the matter the matter may very likely be finalised after the conclusion of a trial. This can easily take about 6 months and in some cases more than a year (depending on factors such as the amount of time spent on settlement negotiations, when the attorney's bill gets paid, the availability of court dates and such...)


2. Debt based on a Liquid Document

Examples of a liquid document are the following: An Acknowledgement of Debt (AOD), A cheque, and Undertaking to Pay and a Promissory Note.

 A creditor in possession of a document like the above has more security for the settlement of the debt and can avail himself of the remedy called Provisional Sentence. This type of legal proceedings are much faster than the normal proceedings instituted by a summons because the summons in this case calls upon the Defendant to appear in court on a determined date to dispute the fact that it was indeed he/she or an agent of his/ her that has signed the document or the authenticity of the document itself.

The court date is also much closer than in the case with a summons- where there are a number of documents that needs to be exchanged between parties before the matter is deemed ready for trial.


Once judgment has been obtained it has to be executed. This means that if the debtor does not pay out his/ her own accord the money (and at least a portion of the legal costs) due is to be obtained in one of the following manners:

1. Execution against movables: Given the price of storage costs charged by the Sheriff these days I shall only recommend this in the event of a debt being R 10 000.00 or more. If the debtor's movable seized are at at a value equal to the debt one can proceed with the removal thereof. The Sheriff usually gives a rough estimation of the value of goods he lists for execution and you can use the inventory supplied by him to consider the viability of removal and sale.

A number of days (not less than 15 days after attachment according to the Magistrates' Court Rules ) pass with the goods held in storage by the Sheriff and part of the proceeds are deducted to pay this before the Creditor receives his part. If the proceeds from the sale are not enough the creditor shall even have to pay in to cover the storage costs.


2. Execution against immovable property: If the Sheriff cannot find anything movable to attach then you can go for the house- if the debtor owns one...

A writ for attachment of movables can be obtained from the Registrar or Clerk of the Court and require no evidence other than the fact that you have a judgment. To attach immovable property however one needs to get an order from a judiciary officer- a judge or magistrate as circumstances require- to authorise the Creditor to attache the property for sale.

It is important to bear in mind, however, that a lot of properties are mortgaged. If such a sale is to take place the Bank- as Bondholder- has the right to be paid first from the sale- in full- before the Creditor gets his share. It is thus understandable that you will first need to know to what extent the property is mortgaged before you embark on the attachment of a debtor's immovable property.


3. Emoluments Attachment Orders: You may know from the news of late that judicial oversight is now required when getting these orders. When one applies for this order one applies to be authorised to take monthly payments from a debtor's salary to settle the debt. A Magistrate needs to have sufficient information on a debtor's income and expenses in order to determine the monthly amount to be deducted.  

4. Garnishee Orders: "Is this not the thing in 3 above?"
No, it is not. Not all debtors work for an employer. Still- they may have people owing them money. The application to attach these debts are a bit easier than with Emoluments Attachment Orders and the debtor does not even need to be notified of the application beforehand.


5. Sequestration: The High Court has actually made it clear that a sequestration should not be used for the enforcement of a debt. Still- if a debtor has no cash, but lots of earthly possessions- this is your last option. Because this is usually a very course of action it is deemed advisable to reserve this for debts of R 50 000.00 or more. The law may say a debt of at least R 100.00 is sufficient, but I can assure you that the cost of the application itself is never this much.

Something to bear in mind when sequestrating a debtor or at least trying to is that the Court is not only concerned with you, but with other Creditors as well and it would grant the order for sequestration only when it is convinced that doing so would be in the best interests of all creditors concerned.


A last thought on debt recovery is that we really have to be careful with whom we do business. It is no use to sue "men of straw" after all.

Want to go to Court alone?

Like I have met clients who do not want to take a step without an attorney I have also met some of those brave (and maybe frugal) individuals who choose to handle their cases by themselves.

South Africa's Bill of Rights, which is found in its Constitution, has enshrined the right of all South Africans to access to the courts of law.

We have actually come a long way since the enactment of the Constitution and I will show you with the content of this article how much more accessible our courts have become.







The fact is, though, that it is not always such a good idea to handle a court case by yourself. Let's look at the different courts in which you may find yourself and how much you may need assistance when dealing with them:

1. Criminal Courts: Whether in the High Court or Lower Courts (Regional and District Magistrates' Courts) a complainant has the Prosecutor to assist him/ her to a certain extent. To what extent? Well- that extent is limited by the fact that the Prosecutor works for the State and handles the prosecution on the State's behalf. He/she may assist the complainant in the preparation for the trial, but complainant's may find that a Prosecutor does not necessarily have to continue with a prosecution regardless of how the complainant feels about the matter. This discretion, however, is regulated by law and public policy and the interests of victims of crime have to be duly considered in the exercise thereof.

When you are an accused person you may find that you can easily handle yourself when charged with minor offenses like assault where no serious injuries were sustained or shoplifting where the value of what was stolen is below R 1 000.00. This is especially true if you are a young first offender. Your chances of becoming imprisoned under such circumstances are just that much smaller.

When the stakes become higher you shall most likely hear the Judge or Magistrate advise you to seriously consider getting an attorney.

The Courts do their best to assist unrepresented accused persons, but they shall not teach you how to testify or how to cross-examine witnesses. That is something to think about.


2.  Civil Courts: With the exception of the Divorce Courts and the other courts that I shall mention below I shall be frank. These courts require specially drafted documents that you shall most likely not have the time to learn to draft. Whenever you find yourself being sued or in an application for a court order against you- or being he one who wants to sue or bring the application- you should rather not do this alone.

3. Equality Courts: The PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT 4 OF 2000 has instituted these courts to adjudicate matters concerning unfair discrimination. Discrimination against any individual is unfair when it is based solely on the grounds of:

 "(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or

 (b) any other ground where discrimination based on that other ground-

 (i) causes or perpetuates systemic disadvantage;

 (ii) undermines human dignity; or

 (iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a)"

These Courts are actually very "user friendly" and complainants and respondents alike get assisted by the Clerk and the Presiding Officer. You can find yourself actually getting very far in this court without the help of an attorney. Still- many unrepresented complainants do not understand the true purpose of these courts and tend to bring matters to it that cannot be adjudicated there.

4. Harassment Courts: The Protection from Harassment Act 17 of 2011 has instituted these courts. They are found in virtually all Magistrates' Court Buildings (I don't think a circuit court will have them) and are intended to adjudicate matters in which an individual complains of being harassed. At present the definition of harassment in this act is this wide:


  

To add to this-"harm" can be financial, physical or psychological.

These Courts were modeled after our Domestic Violence Courts and can easily be approached without the help of an attorney. The Clerk and Magistrate give complainants a huge amount of assistance.


5. Domestic Violence Courts: Like I said earlier- the Harassment Courts were modeled after these courts. They are extremely user-friendly. These courts serve to combat the prevalent evil of Domestic Violence in our country and one should not expect a warm welcome if you are a party in a divorce matter who wants to use the harsh words spoken to you some months ago to get some sort of advantage in your divorce matter.


 6. Maintenance Courts: This court might not assist respondents as much as complainants, but respondents do get a lot of guidance from the Maintenance Officer. The complainant, however, get assisted by the same Maintenance Officer and a Maintenance Prosecutor. It can't be disputed, after all, that the money you spend on your attorney in such a court is better spent on your children.


There are also other forums such as the Rental Housing Tribunal, Small Claims Court and Consumer Tribunal that were specially developed to enable individuals to approach them without the need to appoint an attorney.


Even if you are going to litigate by yourself it never hurts to get advice before you act. The fact is- a large number of cases have already been decided before yours and an attorney often has the necessary knowledge and experience to help you find out the outcome of your intended approach before you get it from the Magistrate.

I feel quite at home in Court by now and shall gladly assist interested clients. I can be contacted here:

Want to go to Court alone?

Like I have met clients who do not want to take a step without an attorney I have also met some of those brave (and maybe frugal) individuals who choose to handle their cases by themselves.

South Africa's Bill of Rights, which is found in its Constitution, has enshrined the right of all South Africans to access to the courts of law.

We have actually come a long way since the enactment of the Constitution and I will show you with the content of this article how much more accessible our courts have become.







The fact is, though, that it is not always such a good idea to handle a court case by yourself. Let's look at the different courts in which you may find yourself and how much you may need assistance when dealing with them:

1. Criminal Courts: Whether in the High Court or Lower Courts (Regional and District Magistrates' Courts) a complainant has the Prosecutor to assist him/ her to a certain extent. To what extent? Well- that extent is limited by the fact that the Prosecutor works for the State and handles the prosecution on the State's behalf. He/she may assist the complainant in the preparation for the trial, but complainant's may find that a Prosecutor does not necessarily have to continue with a prosecution regardless of how the complainant feels about the matter. This discretion, however, is regulated by law and public policy and the interests of victims of crime have to be duly considered in the exercise thereof.

When you are an accused person you may find that you can easily handle yourself when charged with minor offenses like assault where no serious injuries were sustained or shoplifting where the value of what was stolen is below R 1 000.00. This is especially true if you are a young first offender. Your chances of becoming imprisoned under such circumstances are just that much smaller.

When the stakes become higher you shall most likely hear the Judge or Magistrate advise you to seriously consider getting an attorney.

The Courts do their best to assist unrepresented accused persons, but they shall not teach you how to testify or how to cross-examine witnesses. That is something to think about.


2.  Civil Courts: With the exception of the Divorce Courts and the other courts that I shall mention below I shall be frank. These courts require specially drafted documents that you shall most likely not have the time to learn to draft. Whenever you find yourself being sued or in an application for a court order against you- or being he one who wants to sue or bring the application- you should rather not do this alone.

3. Equality Courts: The PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT 4 OF 2000 has instituted these courts to adjudicate matters concerning unfair discrimination. Discrimination against any individual is unfair when it is based solely on the grounds of:

 "(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or

 (b) any other ground where discrimination based on that other ground-

 (i) causes or perpetuates systemic disadvantage;

 (ii) undermines human dignity; or

 (iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a)"

These Courts are actually very "user friendly" and complainants and respondents alike get assisted by the Clerk and the Presiding Officer. You can find yourself actually getting very far in this court without the help of an attorney. Still- many unrepresented complainants do not understand the true purpose of these courts and tend to bring matters to it that cannot be adjudicated there.

4. Harassment Courts: The Protection from Harassment Act 17 of 2011 has instituted these courts. They are found in virtually all Magistrates' Court Buildings (I don't think a circuit court will have them) and are intended to adjudicate matters in which an individual complains of being harassed. At present the definition of harassment in this act is this wide:


  

To add to this-"harm" can be financial, physical or psychological.

These Courts were modeled after our Domestic Violence Courts and can easily be approached without the help of an attorney. The Clerk and Magistrate give complainants a huge amount of assistance.


5. Domestic Violence Courts: Like I said earlier- the Harassment Courts were modeled after these courts. They are extremely user-friendly. These courts serve to combat the prevalent evil of Domestic Violence in our country and one should not expect a warm welcome if you are a party in a divorce matter who wants to use the harsh words spoken to you some months ago to get some sort of advantage in your divorce matter.


 6. Maintenance Courts: This court might not assist respondents as much as complainants, but respondents do get a lot of guidance from the Maintenance Officer. The complainant, however, get assisted by the same Maintenance Officer and a Maintenance Prosecutor. It can't be disputed, after all, that the money you spend on your attorney in such a court is better spent on your children.


There are also other forums such as the Rental Housing Tribunal, Small Claims Court and Consumer Tribunal that were specially developed to enable individuals to approach them without the need to appoint an attorney.


Even if you are going to litigate by yourself it never hurts to get advice before you act. The fact is- a large number of cases have already been decided before yours and an attorney often has the necessary knowledge and experience to help you find out the outcome of your intended approach before you get it from the Magistrate.

I feel quite at home in Court by now and shall gladly assist interested clients. I can be contacted here:

Access to children during divorce proceedings

Okay- it has been a decade since the Children's Act has been adopted here in South Africa and still we have parents who want to fight for "custody" over their children.

I guess this is what we get for taking legal advice from American television or that "Oom" or "Tannie" at the family gatherings.

The fact is- we do not have a thing such as "custody" over children in our law.







Does that surprise you?

Well- here is another one for you. No one, except for the child, has anything to gain or lose from Family Advocate investigations or Children's Court Proceedings.

That is because the only thing the Children's Court or the Family Advocate is interested in finding out is what is in the child's best interests. If you want an idea of how they know what to look at these extracts from Section 7 of the Children's Act ought to give you an idea...

That is the reason why I do not fight about children to begin with.

If no agreement can be reached between the parents about contact with the children, where the children are to live or any other aspect of their care the Family Advocate has to be requested at the earliest possible time to investigate the matter so that I can have a recommendation as soon as possible. It does take months, but gives much better results than barking at the other party's attorney for months on end.

While the Family Advocate is attending to the children's situation we can then focus on the assets, liabilities and maintenance.

In our law parenthood is also virtually a lifelong commitment. Even when a parent is divorced he/ she has full rights and responsibilities of a parent, whether the child lives with him/ her or not. This is important for the primary caregiver- that is the parent with whom the child is staying- to remember, because just disappearing with a child so that the other parent does not know where the child is is actually a criminal offence. That means you can end up getting arrested and prosecuted.

A divorce court (During divorce Proceedings), a Children's Court and the High Court are the only institutions that can terminate any person's parenthood. A simple desire to stop being a parent or to stop someone else from being one is not enough, though.

A lot of people have already learnt that it is much better to rather have an agreement regarding the child's care and contact with parents than engaging in a costly battle from which neither parent has anything to gain.

I, for one, hope to see the end of such disputes soon, because this is definitely not the right country in which to have such disputes.

Beware the Money Bully

Hello, everyone who has managed to stumble upon this article and welcome to my Facebook page and this blog.

In this blog I will post news and articles from time to time and do my best to make the information here understandable to the people I serve, who are of course- the general public.

 

A lot of you may already know what the term "Money Bully" refers to. Some of you might have met one or about twenty and just did not know what they are.

I shall quickly explain what a money bully is and where you find such a person.

Money bullies are people who are in the position of client or employer and who uses the fact that they pay for goods or services rendered to get an unreasonable hold on employees, service providers or vendors.

The harm they do starts sneaking up on you when you swallow your pride and do your utmost to appease what appears to be a dissatisfied client and later hits you full in the face when you realise that your time, effort and money all got swallowed up in this huge black hole of abuse and grief.

Of what concern is this to a lawyer you may ask?

All our business transaction we find in our day to day lives are in fact contracts. Contracts give the parties thereto rights and obligations. It is of the utmost importance for all parties to know what their rights and obligations are before they can even think of approaching the Court to enforce or to rectify their agreements. Now this is where the Money Bully strikes the hardest. He/ she often does not want you to know what the full extent of your obligations are simply because he/she is determined to get as much out of you without paying.

A client I have once assisted ended up running a loss with interior decorating he had done for a client who seemed to keep changing her mind at a whim.

When I requested the client in a letter to give us her exact instructions in writing she had suddenly become quiet and left my client alone.

Other tactics employed by less aggressive money bullies (I can't really call these people bullies, because they don't really instill fear in anyone, but the tactics they employ are based on the same principles as those used by the more aggressive types) include a constant change in invoicing details, repeated requests for breakdowns of amounts and trying to change the topic with new or more instructions.

Your best defense against a money bully is ensuring that you know the terms of your agreement and that you adhere thereto. All changes to any agreement preferably have to be in writing and understood and signed by all parties.

Also- if you have eventually decided to sue for payment- requests for statements and offers to pay in instalments or to pay at al later date to not stay the time period of the summons. There is only one document that does that and it does so for a limited amount of time.

That's it from me. Stay well until next time!