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...