Best Wishes for this End of Year

Here we are-

At the end of a tough 2019...

I am glad to see that I am not the only one who has experienced this year as a particularly long one.

I am now at the end of Year 3 for my practice. I am happy to say that I have had my second audit to be approved by this Legal Practice Council of ours.

One of the highlights of this year is that I have managed to get a court order authorising a mother to leave the country with her minor children without needing the father's consent. Now- before anyone starts raising issues such as child abduction and so forth- let me first tell you that this is one of two cases where the children reside with the mother and the father resides far away.

In one of these cases the father does not even bother to keep contact with the children and this hurdle of having to obtain his consent even for just a vacation in Mozambique is unreasonable when one considers this.

2020 is going to be my fourth year in this practice. I am really looking forward to it. It is just around the corner. By that I mean- really- it is only 23 days away...

So- before it shows up- let me thank my old clients, and the new ones that have just shown up, for their support throughout this year.

I wish all of you a blessed Festive Season. Those of you who have to work through this December- I am with you. I have decided to work all the way into the new year. :)

Those of you travelling on the roads this holiday- stay out of trouble.

If you can't- and that attorney that you have in your pocket is on vacation and out of reach- I hope that you have put R 8 000.00 aside for the occasion.

To all of you, however, I hope you take some time this Christmas to appreciate the people closest to you. I also hope that you have a prosperous and joyful 2020.

 

Attorneys and Advocates- who is more senior?

Am I an attorney or an advocate? 

Last week I have attended a meeting hosted by the LSSA at which one of the speakers mentioned during his speech that a Minister (it is really not important which Minister it was or in what context it was said) remarked that he "knew" that Advocates are more "senior" than Attorneys.

I know very well that it is not just a Minister that thinks this. This is a common view that pops up from the public every once in a while...

It sometimes appears in the form of a client who specially requests for an advocate to be appointed, without any knowledge of who this advocate may be or what he has done, just because his opponent has one on his side, or where an advocate gets requested because he or she happens to be well-known among the public.

Much of the legal profession runs on appearances. That cannot be disputed. I will admit that where appearance is concerned advocates often do appear better than attorneys. You don't see them rushing back and forth to deliver papers. They don't index and paginate court files. They don't make copies of documents. No no no... They instruct attorneys to do those things...

Western society has a tendency to give more respect to those people who are not seen to be involved in what is regarded as menial tasks.

We as attorneys? We take telephone calls, write letters, deliver documents, make sure that a court file is ready for trial or hearing and deal with the management of a court case long before the advocate gets his moment in the spotlight at court. Since none of these tasks are seen by the public watching from the gallery- it is understandable that the person that does all the talking, and sounding really clever while he or she is at it, shall be regarded as "more senior".

Truth is, however, that if one has to look for a reason to give the one higher regard than the other not even differences in legal knowledge will be of any use. Knowledge differs among attorneys as much as it differs between attorneys and and advocates. The difference with advocates, however, is that, fortunately, the advocate usually advertises his specialised field of expertise so that an attorney can know who to call upon to fill the gaps in his own knowledge if a case calls for it. This is why I hold the view that an attorney is in a much better position than a client to decide whether the appointment of an advocate is necessary or not.

You may ask: Hasn't an advocate studied longer for his profession than an attorney?

The answer is that is a simple "no".

It deserves to be mentioned that vocational training in addition to the LLB degree has always been a requirement for attorneys while new advocates only get to have this requirement after the enactment of the Legal Practice Act in 2014. Before this time an attorney had to serve a term of articles (usually 2 years of grunt work) and then write he Board Exam after he or she has obtained the LLB Degree. During this time many advocates got admitted as such just by obtaining the LLB Degree and then applying to the High Court to be admitted as such.

I love appearing in court and attending to my own hearings and trials. As a result I have litigated against many advocates in my time and will still do so for a long time to come.

The benefit that my clients derive from this is that they do not have to pay the unforeseen expense of an individual whose costs I was not able to estimate in the projection I give at the time of taking first instructions and costs get managed a lot easier. Whenever an advocate does become necessary I do not hesitate to appoint one, but the costs are always risky because you never really know what an advocate charges. I am glad to say, however, that I am fortunate to know some really competent advocates or counsels whose fees are really reasonable.

The benefit that I derive from doing my own trials and hearings is of course that I get to receive the day fee in respect of the court appearances.

Before I leave you- I want direct your attention to the above photos. That is my High Court wear. Advocates wear the same kind of attire. So- if you do not know us beforehand you will not be able to tell us apart in the High Court. :D

You the Unpaid Subcontractor

The story is heard more and more in South Africa, especially in the construction industry-

Your BEE score is definitely not even nearly right for you to be awarded the tender, but the contractor that did actually get it has given you your big break. You are now a subcontractor and in line for your slice of the pie...

Then comes the payday... or... it does not come...

You find out that your benefactor has already been paid by the government department that is his client, but he has conveniently forgotten to pay you.

So- what do you do?

Well... For many subcontractors the contract is still too big an opportunity to pass up and they stay on board- usually having received some promise of payment at a later stage or an arrangement with the client to pay them directly the next time.

Some wait for months on end for payment and pay their workers out of their pockets.

Others suffer huge losses and go out of business...

It is common knowledge by now that a large number of bidders who do get awarded tenders for government construction projects have absolutely no knowledge or experience of the work that they undertake to do. In cases like these the contractors rely on the expertise of their subcontractors to earn them the money that they pocket.

Some of these tenderpreneurs, however, care only about what the money paid by the Government can do for them and they have a habit of first spending this money on what they want before paying any of their business debts. This usually gets demonstrated very clearly and it is important from a legal point of view to take note hereof.

So- once you have found that your client, the Tenderpreneur or Government Contractor, has left you in the lurch- what can you do without involving the courts?

Well... the truth is- not much...

You may think that the signed undertaking to have the next payment go directly into your bank account instead of the main contractor's has solved the problem, but what you don't know is that the government department involved is not automatically bound by this arrangement between you and the Contractor- not even if that trusted contact at the government office is present when the arrangement has been made.

A government department's procurement and supply chain management policy is very strict about where public funds are to go during the course of a project and if your arrangement for direct payment is not approved by the government department in question you have a contractor that will defend himself with that the problem now lies between you and the Government and that trusted contact that stops answering your phone calls when the money does not come when it is expected.

So- you will most likely not get very far without an attorney when your mandator stops paying you.

So- what can your attorney do for you?

Here are the options that you can consider:


1. Business Rescue: 

No. Not for you! For the Mandator! Before this term had entered our law we used to have judicial management. Well- we still do, but it is called Business Rescue now. Not only the owner of a company, but also a creditor of such a company can approach the Court with an application for the company to be placed under Business Rescue when the creditor can demonstrate that the company has a steady enough cash flow, but that the money just does not go where it is supposed to, or, that the company does not have much of a cash flow, but that it SHALL improve if a competent person is placed in charge.


2. Anti-Dissipatory Order: 

You cannot get a garnishee order against an organ of state from your local Magistrates' Court. The High Court, however, can make sure that that retention money that is still lying with the government goes nowhere until the legal proceedings that you have instituted are finalised.


3. Winding- Up:

We may all know that winding-up is the automatic choice for a creditor when the debtor appears unable to pay his debts, but winding-up proceedings have another use as well.

Every now and then you find a crafty tenderpreneur who is the director of not just one company, but also a director of a couple of other companies, member of a close corporation or two or even a trustee or beneficiary of a family trust.

The moment you start looking for the money that was supposed to have come to you, you find that large amounts thereof have gone to all these different entities. A liquidator, however, is able to track down these lost funds and recover as much thereof as possible for the benefit of creditors.


4. Priovisional sentence:

Many learned colleagues can name a number of circumstances under which this remedy is appropriate. What these proceedings do is bypass the necessity of a full action procedure (which includes a trial) and jumps straight to the hearing of the matter. Instead of oral evidence, parties usually present their sides of the story in their affidavits and parties usually need not present oral evidence. Most of the time spent in court (besides waiting for the matter to get called, of course...) is spent on arguments presented by legal representatives of the parties. It is a much quicker way to get judgment in your favour than your normal action procedure that starts with a summons and that only reaches the trial stage after a lengthy process of exchanging all manners of paper.

Now- I have said that learned colleagues can name a number of circumstances under which you can apply for this relief, but I say your best bet is when you have the following:

1. A written acknowledgement by the debtor (who is of course the Mandadtor)

2. of the precise amount owed; 

3. that contains no conditions yet to be met by you (or which confirms that you have met all conditions for payment);

4. which can be a letter, email or a written undertaking to pay.


5. Action procedure:

This is really your last resort. This is your option when you have no such document that qualifies you for provisional sentence and your claim for payment is disputed.

Sure- it costs money and it takes time, but having proceedings like this on the court roll places you in a far better position than trying to phone people who have long since stopped answering your calls...


So- If you are a subcontractor that is experiencing non-payment by your mandator- don't just leave it to chance. Contact me and let us get something done about it!

Conspiracy Myth: You don't really need to appoint someone from out of town.

Every once in a while I get to chat with either a client of my own or some random stranger that feels the need to discuss his/ her case with me and end up hearing that they have appointed an attorney from out-of-town. If you live here in Mpumalanga you would usually hear about an attorney from Gauteng being appointed by a litigant here in your own area.

Now- I do admit that other reasons for this arrangement exist in some cases, but the one reason that I want to discuss is the following:

"Attorneys here in Nelspruit are all in each other's pockets and they arrange among themselves how matters are to be settled."

Well... hearing this does not sound so bad to me at first, but when clients start elaborating on what their problem with a situation like this, it becomes clear that some clients feel that we conspire against their best interests.

Apparently- not enough has been done to keep the public informed of how the different legal processes work and a statement of the above is usually the result of imagination filling the blanks to make up for what the clients do not see happening in their cases.

While I do everything in my power to ensure that clients' matters are handled in a transparent manner I still think it is necessary to bring the following to clients' attention:


1. We are colleagues, but not necessarily friends:

Believe me- with the amount of time that legal work takes out of your day there is not enough time to make friends. Sure- we have Attorneys' Association meetings once every quarter or so, but not all attorneys in my area show up for them.

And while we do maintain a fair level of collegiality amongst one another experience has taught us that no matter how nice any colleague may be at the meeting- his client comes first to him or her and you really have to be extra careful when litigating against any of them.

While we are normally very vocal about our victories in court there is a fair amount of defeats that we have also suffered against the very same colleagues with whom we are so civil.

As a practitioner whose been in this profession for a much shorter time than a number of my colleagues here in Mbombela I can also confirm that about only one out of twenty settlement proposals made by myself ever get accepted off the bat. Most of the cases I handle end up being litigious simply because the other side is unwilling to even consider what I have to say.

So- if you think that we meet in a bar and discuss who gets to win which case, you are seriously mistaken...


2. If matters really get settled out of court that easily it would actually be better for clients

While you might think it is a good sign to see attorneys battling it out at court the fact remains that litigation is risky and expensive. Sure- accepting a settlement may mean that you get less than what you actually want, but it puts an end to the stress and running up of legal costs right there and then.

I actually represent on a regular basis clients whose opponents try to litigate them out of pocket. Such opponents are never in a hurry to settle and think that they can bully you into accepting their terms just by dragging out the matter for as long as they can. The only solution is to structure bill payments according to the client's means and then do everything that is necessary to get a matter trial ready or otherwise ready to be finalised at court. In spite of all this it would still be much better if all this cost can be avoided by just settling out of court.


3. Litigation attorneys usually have a strong desire to win at all cost

Sure- they may deny it to your face, but I can't recall any litigious matter against any of my colleagues where I did not have to deal with some kind of clever strategy or cunning tactic to outwit me or my client. I guess that is just the way we are.


In any event- appointing an attorney from out of town is more expensive in the sense that it adds travelling costs and correspondent fees to your bill that would otherwise not have been there if had just supported one of the attorneys in your own town.

Cynicism, laziness and just plain unwillingness to help- Things that do not belong in our courts

I was listening to some of my colleagues complain about the troubles we experience at one of our courts when I realised that we, the previous generation of attorneys actually owe an apology to the new generation of attorneys that have joined this profession about two years ago.

You see- long ago we have entered into the profession, gone to court and found the Registrars, Clerks of the Court, Magistrates, Judges and all these other officers of the Court, Police and other sectors of the public service as unhelpful and full of nonsense as you have found them, but we have not done anything about it.

Why did we not appeal against decisions, obtain mandamus orders to compel unhelpful officials to do their work on pain of criminal prosecution or sue for damages? Well... We thought that we have managed to reach a truce that we thought beneficial to ourselves and our clients.

We tolerate their bending the rules as long as nobody got hurt. We did not make too much noise and in return we were not singled out and given a harder time at court for making their lives uncomfortable.

We thought it would work.

Instead- you, the recently admitted attorneys of this generation have inherited courts with officers thinking that they have your bosses under control so they need not show you any fear or respect.


One of the perks of being a sole practitioner with right of appearance in the High Court is that I have some degree of freedom to manage my time without a boss surprising me with work that could get in the way of other rewarding enterprises. One such rewarding enterprise for me is getting public servants and officers of the court in line.

Why would I spend the extra time on doing this? Well- a simple reason, not the only one, but nonetheless significant, is that not getting assisted by the court in the manner which we expect to be assisted is bad for business. Clients see us not managing to get relief and they lose faith in us. We lose the clients. That is not where it stops, however...

Clients lose faith in the legal process and this is what ensues...



Admit it- you know what these people would tell you if you suggested that they'd rather approach the court with their grievances, don't you?


I have recently brought an urgent application. The third one in my entire life.

Why not more? Well- most of the time cases brought to me do not really have the grounds for the urgent procedures to be used. What did have those grounds with me at the times of these applications were:

1. The police having unlawfully arrested somebody and detaining the applicant without any charges;

2. A mother that was going to relocate with a child 3 days from when the news reached a concerned father;

3. A tracing agent that was going to forcefully take an applicant's vehicle at 20h00 that night while an application for suspension of the judgment was still pending.


In the first instance the Judge saw nothing wrong with being wrongfully detained for 24 hours.

In the second the Judge was more concerned with indexing and paginating than with the impact of her decisions on the parties.

In the third- The judge thought it a good idea to hear the application only the next day.

The third, and most recent, instance is where I have realised anew how cynical this line of work an make us. Before I was allowed to speak to a Judge and get the opportunity to do whatever I can to get his assistance I first had to deal with a Judge's clerk who had already judged the case before I have even begun to speak.

I had to hear that my client had it coming and that they can't give urgent assistance to everyone who was to have their vehicles repossessed. At least- when I have eventually convinced her to let me speak to the Judge I had to face this brand of cynicism anew.

Well- the fact that my client still has his car had nothing to do with the Judge's assistance the next day. It had a lot more to do that the bank has honourable and ethical attorneys who have assured me that the application was not necessary. The tracing agent's conduct ended up not being sanctioned by the bank.

Well... we were lucky there...

Afterwards I had to her from my Counsel that the Judge said that there would in any event have had to be "blood on the walls" for him to have entertained the matter. I just said- I am sorry, but if a threat of prejudice that was to follow at 20h00 that very same night is not urgent enough for him I deem myself unable to satisfy that particular Judge then.

Let's view all this from a different angle now:

We know the Courts and the State have no competition. Their employees get paid a full salary with benefits and in many cases allowance for travelling and housing- all just for showing up at work. Refusing to help a seemingly insignificant attorney will not threaten this cushy job with all its perks, right...?

Well... maybe... as long as nobody gets hurt.

You see- what we tend to forget is that here in South Africa nobody is above the law and anybody who suffers damages because you, whoever you may be, have not done your job, has a right to sue you for those damages.

And me...? Well, I am still unknown to most court officials in this country and I none of the ones I know deem it necessary to have any kind of truce or treaty with me- I will definitely not hesitate to sue any court official for damages that he or she may cause my client to suffer.

That is really something a court official or public servant has to think about before he or she just shows you away...

Don't bother anymore, Family Advocate. My client got fed up...

I practice law here in Mbombela, in the province of Mpumalanga and although I am glad to say that I often manage to get things done, liaising with any public service institution also often reminds you that this is not Gauteng or the Western Cape.

Since May 2019 I have been involved in a High Court application that started out as an urgent application to stop the mother of a child from taking him out of school to move on what had first appeared to be a mere whim. When I have found that the mother actually had compelling reasons to move I have nonetheless asked for an order compelling the Family Advocate to investigate the matter.

Having obtained the Court order on the 29th of May I received my hard copy later on and served it on the Family Advocate on the 3rd of June.

The order equired of the Family Advocate to have a report ready by 1 August 2019. Ample time, don't you think?

Well... Given that the Family Advocate had to contact the parties, hold interviews with the parents and the child, MAYBE obtain reports from other parties- you would think that by 1 August the Family Advocate would at least have been able to report on what they have learnt from the parents.

Unfortunately- this is Mpumalanga....

Here I had to hear from both parents that during all of June nobody from the  Family Advocate has contacted them.

Guess what- Toward the end of July I had at least received confirmation from Mr Rawlinson at the Family Advocate's offices that the file was allocated to Adv Maiwashe (Yes! I am mentioning names here! Sue me if you want!) Adv Maiwashe was requested to have an interim report ready by the 1st of August.

So- what happened then?

Well... on 7 August Adv Maiwashe denied having had knowledge of the file until only 3 days before then...

I had in he meantime tried to limit the damage done by means of case management with the new Form C in terms of our new High Court's practice directives. Toward the end of last week I have received the interim report. As these reports are, this report consisted of 4 pages. None of these pages contained a single word about what has been learnt from either parent or the child, though. What it did contain was a long-winded set of unconvincing excuses about why nothing had been done since June and- as if that was not enough- a contemptuous statement that an order from the Court shall never supercede their policies "and legislation".

As final insult to injury my client, the father, told me that he would rather just drop the entire matter as he feels the entire system is against him.

When one uses legislation and rules to cover your unwillingness to do his job the one thing that always stands out like a sore finger is that the institution for which such a person works then fails in fulfilling the mandate which is its reason for existing.

The Family Advocate's purpose is all too clear to many of us involved in family law matters. The High Court refuses to make any ruling about the care of or contact with a child if it has not received the Family Advocate's input. What we have learnt after a while is that where parties involved in a pending divorce can approach the Family Advocate to mediate any dispute pertaining to the well-being of a minor child they are also mandated to investigate and report about a minor child's best interests when they are ordered by the Court to do so- regardless of the fact that the matter is not a pending divorce.

Given all this the easiest thing for me to do is just withdrawing this application and letting the Family Advocate know that this file can now remain unattended forever.

It is not that simple, however...

This application is about the best interests of a minor child and cannot be swept under the rug like this.

Be assured- our Family Advocate shall be called to account for their conduct...


Regardless of what the employees of public service institutions tell you- poor service delivery is not something you should accept at any time!


We know the State has no competition. To make matters worse- in a province like ours even the political party that holds the majority here is not really threatened. That does not mean that we have to give up hope, though. It means that we have to be prepared to fight harder for justice here than we would have to anyplace else.

Don't lose hope. Help is available...

"My boss told me not to speak to lawyers"

Stay long enough in this profession and, especially with a general litigation practice such as mine, you get into all sorts of situations.




The latest situation that had me chuckling in disbelief occurred in the course of a consumer matter in which I had to obtain information on behalf of the consumer. The information was not top secret company information, but information about an item that belongs to my client that was supposedly traded in to set off repair costs.

Only after an employee of the supplier had told me that no information about the trade-in was to be found on record did the service provider email me to tell me that he has been informed that that employee that gave me the information was not allowed to speak to lawyers.

This is not the first time I encounter this. Here in my home town the receptionists at a well-known hospital refuse to sign for any documents that they know to come from a lawyer. The only reason they have for this is that their employers told them not to.

Well... you as an employee should probably not put your job in jeopardy by disobeying your employer, but that kind of message tells me that your employer does have something to hide.
And trust me- whatever is hidden, can be found. Attorneys have different means of obtaining information needed for legal proceedings if the holder of that information does not want to give it up freely.

A while earlier- before this incident with the consumer matter- I was also dismissed from a meeting between two parties in a completely non-litigious matter. Well- I have not suspected any foul play on the offending party's part before the meeting started, but when I was not allowed to attend I immediately knew that something was amiss. What the chairperson of the meeting did not consider was that there was already enough circumstantial evidence of foul play on their part that would not have been taken into account had I been allowed to take part in the meeting. Nonetheless- I have been able to handle the matter regardless of not having been allowed at the meeting.

But it is not only with people from outside your workplace that employees get told not to give any information to lawyers. It is not uncommon to find a clause in some employment contracts that stipulates that the contract and its contents are not to be discussed with anyone outside the workplace. Well- as far as it concerns protecting your employer's private information that is all in order, but when it comes to you seeking legal advice about your circumstances at work or maybe even a labour dispute your employer is not allowed to bar you from giving your attorney all information that is needed to handle your matter in the most effective way possible.

I'd like to close this post with a friendly warning. If we ever meet and you tell me that your employer does not allow you to give me any information, that shall not be the end of his troubles. They will but only begin then...

Opposed Motions to be Case Managed

I don't know about you, but one of my favourite parts of motion proceedings is diarising my application, sticking to the time limits and when I have receive a notice of intention to oppose from my opponent, watching my opponent explain why they were not ready for the court date.

Well... it seems like those days are in the past now. Our High Court has recently released a directive in terms of which opposed motions have to be case managed now.

This will very well change the meaning of the term "opposed motion" for me in the sense that an opposed motion to me was one in which I have received an opposing/ answering affidavit. Many litigants are quick to deliver that two page notice just to delay the matter, but I have always been able to get the matter enrolled on the unopposed roll when the time period for delivery of the answering affidavit has expired.

Now- believe me- after receipt of the answering affidavit there is not much to case manage. I guess that for us to insert this case management process into what is already a lengthy process (with court dates being notoriously far in the future from the date on which proceedings are instituted) we shall have to start at the moment at which that notice of intention to delay- pardon me- to oppose- gets delivered.

Then the Respondent's representative can at least place on record in court when they intend to file their answering affidavit and- with case management orders being orders of court- they can find themselves in non-compliance with a court order if they do not serve that affidavit on time.

Well- at least those among us who have had trouble keeping to time limits now have the Court's assistance... 

Defaulters get more time from the Court to breach settlement agreements

If you are practicing in Gauteng the procedure for getting a settlement agreement made an order of court is something like the extract from the Gauteng High Court's practice manual at this link:

https://johannesburgbar.co.za/wp-content/uploads/008-6-14-SETTLEMENT-AGRS-DRAFT-ORDERS-21-08-15.pdf

According to our Court Rules the circumstances under which a settlement agreement can be made an order of court are the following:

" (3) If in any proceedings a settlement or an agreement to postpone or withdraw is reached, it shall be the duty of the attorney for the plaintiff or applicant immediately to inform the registrar accordingly. (4) Unless such proceedings have been withdrawn, any party to a settlement which has been reduced to writing and signed by the parties or their legal representatives but which has not been carried out, may apply for judgment in terms thereof on at least five days' notice to all interested parties."


Here in Mpumalanga, however, we have found that on 24 June 2019 one of our Judges has remarked in the course of hearing the matter under Mbombela High Court Case Number 765/2018 that after that date settlement agreements shall only be made an order of court on application when one of the parties are in breach of the agreement.

This particular matter- Magagula v The Road Accident Fund is one of an immensely large number of matters in our Courts where the Road Accident Fund was the Defendant. This new rule, which has since become a new practice directive in our courts, applies to defendants in the private sector as well.

You only need to litigate against the Road Accident Fund or any organ of state a few times to learn that the only time these institutions ever do pay in accordance with settlement agreements into which they enter is on the day on which the writ for execution gets carried out. For readers who are not in the legal profession- the writ for execution is a document that can only be obtained after one has obtained an order of the court and it is an instruction to the Sheriff to seize a party's assets if he has a judgment against him.

The current situation means that- if you have been in the habit of stipulating in an agreement that money is to be paid, but never a time by which it has to be paid you shall have to get into the habit of stipulating a time for payment so that you can clearly show that a breach of the agreement has been committed after that time expires.

What it also means is that defaulters in the private sector now get roughly 3 months from when they sign settlement agreements to relocate, hide assets or voluntarily surrender their estates.  In the public sector it just means that time for an organ of state to default on a settlement agreement has been extended with another 2 months at least.

I remember a time when our courts have actually welcomed settlements and have not hesitated to make them as orders of court because it reduced the matter of litigious matters on the court roll.

Now, however, you may find that you may be quicker at getting a court order if you just proceed with the trial or with argument on the opposed motion.

Ironically- there is still a penalty in place for parties who either delay a settlement being reached or who refuse to enter into a settlement agreement. If a matter is of such a nature, however, that the conducting of a trial and presenting of arguments would take less time than the time you would have to wait for the Defendant to be in breach, wait for a new court date for your application to get the settlement made an order of court and perhaps get sent away by the Judge for whatever reason to come back another month later just to get your court order confirmed (let alone signed by the Registrar) I am certain that it would be clear that reaching a settlement would only be of benefit to the party that has to pay.

As I will show in a later blog post, however, these practice directives get issued and amended in response to events that take place in the courts and it is only a matter of time until our courts shall find that they shall have to change this rule as well...

Is your job making you sick? What you can do about it.

Even though it has been more than a century since the advent of the labour laws and unions of this day and age it is still not uncommon to find people working longer hours than what is allowed by law and being put under more stress and at greater risk of their safety than what the law permits.

If you get physically injured at your place of work you have recourse with the Workmen's Compensation Commissioner.

What about mental health disorders or stress-related diseases that result from a hostile work environment, though? Are these just things that come with the territory that should be accepted?

It should not be. No matter where you work or what you do- nobody- and I mean NOBODY- has a right to impair your physical or mental health.

What can you do, however, if you find that your work environment gets worse with each passing day and resigning just is not an option for you? The short answer is that the legal remedy with which to stop any continued infringement upon any of your rights is an interdict. The legal remedy with which to claim compensation for damages suffered is action proceedings which most of us know as the common lawsuit.

Both of these remedies require certain facts to be proven, however, and this is mainly what this article is about. How does one go about proving all the facts necessary to successfully finalise legal proceedings against your employer for detriment to your physical or mental health suffered because of the wrongful conduct of your employer?

Well- whether you choose to apply for an interdict or to sue for damages the court will require proof of the following:

1. Proof of the damages

Your word shall not be enough here. Especially with conditions that have only internal symptoms like ulcers you shall need written confirmation by your doctor of his/ her diagnosis. Prescriptions for medication (and of course proof of the cost thereof) shall also be of assistance.

Written confirmation of a diagnosis is especially important in the case of psychological conditions such as anxiety. You may of course elaborate on what you are personally experiencing, but without supporting evidence by a psychologist you have no chance of getting any judgment in your favour.


2. Wrongfulness on the part of the employer

Some forms of conduct, such as verbal and physical abuse, are clearly wrongful in any situation and here verbal testimony from just yourself can be sufficient for the court to take into account and even to make a finding in your favour. Having eyewitnesses who are willing to testify shall however always be ideal. Any evidence in the form of documents and recordings that you may have to prove the conduct about which you are complaining should be made available to your attorney right at the very beginning.


There are, however, some forms of conduct that may not appear wrongful to people (like the presiding officer in the Court), but which is known to be wrong by people that are familiar with the specific industry or profession within which you work. In these cases you will need to produce evidence of things such as the standard operating procedures, code of conduct or collective agreement that is in place at your workplace. All of these sets of rules are usually kept in writing by the HR manager at your workplace and should be made available to you on request. If your request for this information is denied the employer can be compelled to make this information available by an order of court.

3. The causal link between the employer's conduct and the damages suffered

It is all good and well that you can prove that you are ill and that things at work are not as they should be, but if the court is not convinced that your ill health is a result of your employer's conduct all your hard work in obtaining the above evidence will be for naught.

Proof that your physical or psychological (especially psychological) ill health was caused by the conduct of your employer can only be accepted from a qualified practitioner in the relevant field of medicine. You will find that it is here where your doctor or psychologist is the least willing to cooperate. These people usually do not want to testify in court. Fortunately- your attorney usually knows of practitioners in the relevant fields of medicine who make the compiling of reports for use in legal proceedings and giving of testimony in court their business.

Attending the necessary interviews and examinations with them may take a lot of time away from work and is likely to cost anything from R 7 000 to R 25 000 to get the full report and testimony, but compared to the years of grief that you are about to spare yourself saving up for this big expense is most likely going to be worth it.

Personally I do not think claims such as these have a big enough guarantee of success for attorneys to undertake them on a contingency basis, but fortunately you will know your chances of success after you have consulted with the relevant experts.

What you will need to know when you are getting divorced.

When I sit and think about what to write for these blog posts I try as far as possible to write about a topic which I have not seen anyone else write about in their newsletters or magazine articles and the like.

I have however been asked to write about divorce matters earlier this week. I have thought that the internet is already flooded with information and advice on this particular field of work which is done by most of the legal practitioners in my area. So- I reckoned- what difference shall it make if I am to write a blog post about this?

Well- I have been told by this interested member of the public- a lot of the information out there is written by lawyers for lawyers and is not easy enough to understand.

So-  what if I wrote an article that enabled you to get your own divorce matter started and that pointed out to you what you are to be prepared for?

That is exactly what I intend to do with today's post!


1. When and why you should get divorced

Morality and religion aside- it may not always seem like it, but our law does not allow for people to get divorced just because they feel like it. This may be a shock to some, but even two people who have agreed to get divorced can get sent back home by the Court to go and sort out their marital problems before they get divorced. Why would this happen?

It is because the Court can only divorce a married couple for one or more of the following reasons:

as taken from the Divorce Act 70 of 1979 as amended.

The reasons in part (b) needs very little elaboration, but it is usually the reason in part (a) above that gets presented to Court and get motivated in a wide variety of ways.

What are problems to work through for some are for others reasons why a marriage can no longer be.

I am not going to try to limit the definition of "irretrievable breakdown", but will point out that the clearest indications that require the least elaboration on- if any- are the following:

1. Living apart for more than a year;

2. One of the parties having committed adultery while the other party does not want to be in an open marriage at all.

3. One of the parties having been declared a habitual criminal by the Court and not getting out of prison anytime soon.

There are other indications as well. Whatever you may think are signs that your marriage has broken down beyond all hope of repair shall accepted by the Court as a reason to get divorced as long as the Court does not believe that it is a problem that can be solved by counselling, talking things over or just taking some time to think it over.


2. How to get started

Divorce courts are accessible to the public without the need for a legal representative. If you want to get divorced without an attorney you can start proceedings 100% on your own. If you do so the only person that you will need to pay shall be the Sheriff. This is why...

Your Regional Court has a Registrar that can be approached during business hours. If they hear that you want to get divorced they will give you a form to fill out. Thus form is actually your summons. Personally- I don't like those summonses because I know I can draft much better summonses myself, but they are still good enough to get your divorce matter going.

The minimum amount of information that you need to fill in is the following:

1. The names and addresses of yourself and your spouse;

2. If you have children- their names. You shall in this case need to attach copies of their birth certificates;

3. Where and when you got married. Your marriage certificate needs to be on hand in court and a copy thereof needs to be attached to the summons.

4. Whether you are married in- or out of community of property. If you are married out of community of property you shall need to attach a copy of your antenuptual contract. If you don't have one you can obtain a copy from the Deeds Registry where the contract got registered. It does not cost that much.

5. Why you deem the marriage have irretrievably broken down.

6. Where the minor children shall live and how the parent who does not have the children living with him or her shall maintain contact with them.


If the above is all that you wish to fill in you can get divorced without an attorney.

If you do wish to claim maintenance either for yourself or your children from the other party- you will really want to appoint an attorney to help you. In most cases the other party can accept the fact that he is getting divorced and go along with it. The moment they hear that their money is being threatened, however, they rush to find the nearest attorney. Well- not all of the defendants do that. Some will go for the most expensive attorney or the one with the best reputation...

If the Defendant (that is the other party- the one that you are suing for divorce) does not do any of the above he/ she most likely does not have much money to worry about in the first place and you may wish to reconsider your own claims- at least with regard to the amounts that you are claiming...

With the summons having been filled out/ drawn up the Registrar then has to issue it with a case number. It may take couple of days. It it is not done within a week, though, you shall have to get help because summonses that are not issued within a week have a high likelihood of having gone missing (here in Mbombela).

If you do receive your summons with its case number you then have to hand it to the Sheriff in the area where the defendant lives. The Sheriff delivers the summons to the Defendant in person and then gives you a report stating when a copy of the summons was delivered to the Defendant. 
 
The Court Rules provide for someone who receives a summons to give notice within two weeks that he/ she opposes any aspect of the divorce (like the amount of maintenance being claimed).

This is why you can only ask for your court date after two weeks from when the summons got served on the Defendant.

If the Defendant does enter appearance to defend you should rather get an attorney, because it is even possible for him/ her to get a court date without you knowing if he/she knows the court rules or is assisted by somebody who does. A Defendant who does this can even then go finalise the divorce without you knowing.


And this is how a divorce matter gets started.


Finishing one is another story altogether...


All that I will say is that you can easily get divorced in a month or two if you don't want any money from the Defendant. If you do claim money, though, you can expect the matter to drag on for years unless you have an attorney who know how to manage an opposed divorce.


I hope that this post is useful to someone out there and that he/ she shall be able to find his/ her way to getting the divorce action started. If any help is needed in finalising the matter you know who to call...

Why I do not always like to keep things out of court

Those who know me will be able to tell you- I enjoy going to court. I am in the best of moods on my court days.

I might have a case that worries me a bit, but worry soon gets replaced with focus when the proceedings start.

Still- I have to admit that it is much better for the client if a matter can get settled out of court- or is it?

Well... It can be, if you know what you are looking for and you also know the consequences of the choice that you are to make between proceeding in court and settling out of court.

The main benefit of settling a matter out of court is that it puts an end to the running up of litigation costs for both parties. Sure- you may still get charged for a letter getting written here or there, but that is not nearly the cost of a full day in court. If settling can save you the cost of at least one day in court it is definitely worth it.

So- settling is the way to go, right?

Unfortunately for every tool the law may give us to help us there is someone who finds a way to abuse it. The same is true for settlement negotiations.

It is not uncommon to find your opponent's attorney trying to buy an indefinite amount of time with a phone call to your attorney in which he makes some vague, non-commital promise of an offer for settlement. I am actually asking myself whether there can be such a thing as a non-committal promise.

:D It appears to exist in our line of work...

So- when would it be a good idea to get your matter ready for trial?

The following circumstances are usually a good indication that it shall be better to go to court:

1.  If it is the only way to finalise the matter. In many cases a defendant does not want to see a matter finalised, because finalising the matter will mean that he has to pay! If you are a plaintiff and the defendant does nothing but avoid you- you are going to need the court's help.

2. When it will actually cost less to have the matter heard in court. Some plaintiffs get really creative when they start claiming money from somebody- especially if that somebody seems to be a push-over that will pay anything that the plaintiff demands. In this life we find the motor owner that want you not only for the dent on his bumper, but also his wheel alignment and te removal of scratches on surfaces of his car that did not even have contact with yours! That person is definitely not going to be happy with your offer and he would rather bully and badger you as much as he can outside of court. In a case like this it is better to have the person sue you so that the matter can be properly adjudicated in court. As long as you remain acting in good faith the court will see no need to penalise you in any manner.

3.  If your opponent's proposal is to give you far less than what you will be awarded by the court. In some cases accepting "nuisance money" instead of incurring the cost of a day in court is the better idea. What is not as good is when an unscrupulous opponent counts on your willingness to keep a matter out of court and then tries his best to bully you into accepting an offer of far less than what you are actually entitled to. 

The above 3 circumstances are actually reasons why I have saved clients a lot more money by going to court instead of staying out of it. I am sure you will see the difference between paying for a 2 hour meeting with your opponent and his attorney that has led to nothing and paying for the same amount of time in court that got you a court order in your favour...

Emergency Monetary Relief in terms of the Domestic Violence Act- Quicker than Maintenance Court, but Definitely NOT a substitute for maintenance proceedings!

Hello, everyone!

I admit that I do not write here very often. When I do write something on this blog it is usually I am having a very quiet time at work and then use this platform as a means to get the public's attention.

Today's post, however, is something for which I have specially made time during a really busy month because it deals with something that is often much needed by divorce clients, but not so often obtained by attorneys. I will explain the reason for this very shortly.

If you have read some of my earlier posts you will know by now that I do not take a "chapter-and -verse" approach that involves the quoting of legislation and case law.

My reason for writing the way I do is mainly because these posts are not intended for some legal journal or a doctoral thesis on any aspect of law. It is also not for my colleagues to take note of, but for you- the people.

This is why I keep this kind of post simple and why I try my best to make it the least boring legal article that you are likely to read.

Now- what this post is actually about:

I have recently gotten the Domestic Violence Court to order my client's husband to pay my client money.

It sounds strange, right?

The Domestic Violence Court is there for issuing protection orders (what the people in the U.S. call "restraining orders"), not to make any awards for money to be paid, right?

Well... Not exactly-

You see- domestic violence can take on a number of forms- in our law that number is 10, actually...

If you want to know all 10 of the forms domestic violence can take you can read this short excerpt from Section 1 of our country's Domestic Violence Act (That is Act 116 of 1998 for those who are actually interested in reading the entire Act...):





Noticed (d) in the excerpt above? It names "economic abuse" as a form of domestic violence.

We all know what economic abuse is, don't we?

Well- not all of us...

That's okay- It is easy to explain.

In many domestic relationships, be it a marriage, an unmarried couple living together or that of parent/ guardian  and child we find that one party to this relationship is financially dependent on the other.  The breadwinner in this relationship can easily use this financial dependence to hurt or manipulate the dependent party- and in many cases they do just that.

In my client's case her husband wanted to put pressure on her to agree to the least expensive settlement for him before the divorce proceedings started so- before going to see a lawyer he told her that she had a month to get out of the house and that he has cancelled the lease to their home and will also stop paying the rent after this month...

So- what is she to do?

The Maintenance Court will give this man 2 weeks to come to court with his bank statements and then take another month to get this matter heard by a Magistrate.

We have not yet even issued a divorce summons and even if we did a Rule 43 (High Court)/ Rule 58(Regional Court) application (for maintenance to be paid pending divorce proceedings) have the inherent weakness of giving the Respondent 10 work days to file his answering affidavit (which he usually delivers to your attorney late in the afternoon on the 10th day) and then the matter gets heard only in the next month- if you are that lucky!

By that time the rent is already skipped and the Landlord already scrambling to get my client and her children out of the house! If he is a good law-abiding landlord it would mean that my client now has the added burden of eviction proceedings and if he is a bit more of a loose canon my client could find the doors to her home removed and all her possessions strewn across the street in front of the house! (Don't laugh. I actually sympathise with these landlords, because they have most likely become disillusioned with our legal system when they had a family of freeloaders dealing insane amounts of damage to their homes before they eventually took their leave... I digress now, however. Let's get back to the topic at hand...).

So- we couldn't pass this buck to any other court. We know now that the Domestic Violence Act knows about a thing such as "economic abuse", but how does it deal with it?   

The answer to that question lies with Section 7(4) of the Act that reads as shown below:



Well- I would have preferred to have the section say that non-compliance with the order is a criminal offence and a one-way ticket to stoxing (prison) like the case is with contravention of protection orders in respect of other forms of domestic violence, but I can work with this as well...

Now- I have mentioned that many attorneys have tried and failed to get this kind of order. The main reason for this is because they miss the difference between preventing or stopping an act of domestic violence with compelling somebody to maintain a dependent.

What is the difference between the two?

There are actually a number of differences:

For one: Where the duty to maintain a spouse automatically exists during a marriage and the duty of a parent to obtain a child exists as long as the parent is the legal parent and guardian of that child- unmarried adults living together do not automatically have a duty to maintain one another. One of the parties can obtain that right by applying for a maintenance order, but then the court has to first determine whether the need exists and such right can be awarded to an applicant.

In the case of economic abuse the court needs only to know that the parties are in a domestic relationship- be it married, living together, related or in a romantic relationship and that the complainant is financially dependent on the respondent.

 Secondly: A maintenance order covers a wide range of expenses starting with the most basic of the dependent's needs, but in appropriate cases branching out to those expenses that a dependent would have incurred in order to ensure his/ her education and to maintain living standards to which he/ she are accustomed.

Economic abuse does not go that wide. Your dad cancelled your horse riding lessons? Move on! That is not what the Domestic Violence Court is for.

Thirdly: The economic abuse that a complainant refers to this court has to strike at the very basic needs for human survival: food, a home, healthcare, medical treatment.

A man who has never maintained his child before can still get a maintenance order against him to do so. If somebody in a relationship has never before made certain payments to his partner then the Domestic Violence Court cannot introduce a new regime where he now has to make those payments.

It becomes an act of violence when the financial support on which somebody is dependent and accustomed to receiving suddenly gets withdrawn for no good reason- or for very bad reasons indeed...

Fourthly- A maintenance order can serve to improve the status quo between the dependent and the breadwinner. An order for emergency monetary relief can only endeavour as far as possible to preserve the status quo between parties. This is why a maintenance order application involves a detailed enquiry into the financial positions of the parties while in the case of an application for emegency monetary relief the court needs only to satisfy itself with the status quo before the sudden withdrawal of financial aid.

Lastly- I realise that I should probably have put this difference at the very op of this list- the operational word here is "emergency". Emergency monetary relief is meant to avert a sudden crisis. To deal with an emergency.  It implies that there is no time for coming back for a meeting in the Maintenance Officer's offices to get a court date somewhere in the next month.

I have now come at the end of this article, but anyone interested in finding out more about domestic violence proceedings, maintenance order applications or other related topics can contact me. My details are below:

New Year, New Direction

It is really good to be back. 

I am glad to say that 2019 has started off at a running pace and that the first of my 3 court appearances for this month is already behind me.

The legal environment is not just busy with the same old things, though. It is often changing and I find myself having to adapt to stay on top of it. 

Some of these changes have been creeping up on us for years now, some of them happened as recently as November last year.

So- here is a quick summary of the new services that I am offering as of from this year:

Estates:

Knowing very well that it no longer just a matter of sending paperwork to the Master and checking the post for their next directive, hoping to one day receive the pink slip saying that the estate's administration has finally been completed I have decided to be available to assist.

One big reason why I did not want to get involved in estates in the current state of things is that the administration of estates has now become more labour intensive with more difficulties to deal with due to a disorganised Master's Office in Pretoria and with more time being taken up by the simple tasks that involve visiting the Master's Offices. 

Another reason was that it is not litigation and that it can be a huge bore.

Well- now I see that the wheels have basically come off at the Master's Offices. If your Bank is the executor of your deceased relative's estate I can foresee a couple of walls that they are going to run into. Some of those walls, however, are put there by the Master failing in their legal duty to keep record of estates and supervise the administration thereof. Someone has to take them to court when all else fails. 

And yes- you have guessed it- I am that someone.

Debt Collection and Liquidations

Debt collecting in the Magistrates' Court has become really difficult now with debtors having become smarter and better at hiding assets and legislation removing more and more of the relief that we have been able to obtain against them without having to notify them.

By now I think we all know- give a debtor notice that you are taking steps for execution of a judgment against his assets and those assets will just disappear.

It is all good if we can accept that the debtor really has no assets, but you know that nagging suspicion that these scoundrels actually have huge estates or assets hidden away in family trusts or companies?

Well- I know that feeling all too well. That is why I am offering to wind up the estates of those debtors at the rate that I normally charge for litigation. And yes- you may ask me what it is.

A bit more about liquidations.

I have always been available to bring the applications for the order to wind up and left the actual winding up to a liquidator. The majority of liquidators that I know are based in Pretoria and even the ones that are here in Mbombela would not accept instructions to wind up an estate if it is too small. 

Well- this year I am going to give being a liquidator a go. 

Well- that's what is new here with me. I wish you all the best for this year and look forward to being of service!