Suing an Insolvent Debtor – Can You Recover from his Trust?

Legal
Your debtor owes you a fortune, but when his estate is sequestrated there is nothing in his own name. However you find out that he is trustee of a wealthy family trust with lots of assets that you think are really his – can you recover from his trust? The answer is yes, you can, but only in certain circumstances, and only by choosing the right line of attack. A recent Supreme Court of Appeal (SCA) case illustrates. A Ponzi scheme, a suicide, and R11m worth of missing cattle A former farmer and cattle dealer committed suicide, leaving debts of R35m and many local farmers and businessman defrauded in what had become a Ponzi scheme. The scheme involved “investment contracts” whereby farmers placed cattle on farms hired by the dealer…
Read More

Depressed and Dismissed – A Hard Lesson for a Hard Employer

Legal
A recent Labour Court decision in Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 shows how dangerous it is as an employer, when attempting to dismiss an employee, not to draw a clear distinction between misconduct and incapacity. Disciplined for depression An employee, whose track record had originally been an excellent one, was charged at a disciplinary enquiry with four charges of misconduct – Unauthorised absence from work for 17 working days, Failure to inform his manager of his absences in accordance with company policy, “Gross insolence” in the form of turning his back on his manager when talking about his absenteeism, Refusal to obey a “lawful and reasonable” instruction. He was summarily dismissed after being found guilty of all the charges. He then asked the Labour Court to…
Read More

Changing Your Surname – Your Choices on Marriage, Divorce and Widowhood

Legal
You cannot lawfully use any surname in South Africa other than the one shown in the National Population Register (NPR), and trying to do so will land you in a lot of hassle and probably in legal trouble as well. So tread carefully when it comes to any event in your life involving a possible name change. Don’t be caught out trying to decide at the altar! As a woman about to get married for example, you have to decide what surname you want to use after the marriage. There are many pros and cons to consider when deciding between your various options, but ultimately the choice is yours by law. Think about it beforehand, because it’s important and you don’t want to be caught out trying to make a…
Read More

How to Escape from a Property Suretyship

Legal
As the philosopher and mathematician Thales pointed out two and a half millennia ago, signing surety for another’s debts carries huge risk. Yet every day directors of property holding companies happily sign personal suretyships for their company’s (usually substantial) debts. The problem is that it all seems so safe in the beginning. You need a bank loan to buy or develop a property, you’ve done your homework and the deal is a good, sensible one. It’s only when things go wrong down the line that your signature on that suretyship document comes back to haunt you, and by then it’s far too late – or is it? A recent High Court decision in Absa Bank Limited v Van Eeden and Others (4078/2012) [2018] ZAECPEHC 14 illustrates one of the very restricted circumstances…
Read More

Road Rage – Sue, and Report It!

Legal
We live in stressful times, and as our roads become busier and the pressures of modern life mount, expect more and more road rage incidents. YouTube clips of drivers brawling, beside themselves with fury, vehicles forced off the road or tail-ended by apoplectic motorists, shouting, swearing, punch-throwing, windscreen smashing, racial insults – they all make for good viewing stats but what if you are one of the unfortunate victims? Firstly, you may well have a civil claim for damages – ask your lawyer about your prospects. Both your actual monetary losses and damages for any assault and humiliation could be yours for the suing. Then, as a recent High Court judgment in Olckers v S (A171/2016) [2018] ZAGPPHC 174 confirms, reporting the offender to the police can be an effective way…
Read More

What Happens If You Cancel Your Lease Early?

Legal
You sign a two year lease for a nice little apartment (or a large family house if you have a spouse, 3 kids and a dog) but after 6 months your employer transfers you and you have to cancel early. “Fine” says your landlord “but you are breaching your lease and I am holding you liable for the remaining 18 months’ rental”. What are your rights? As is often the case in life, that depends… Check the terms of your lease First things first, generally your most important consideration is this: “What does my lease say about termination?” Most leases specify what happens if you don’t comply with the terms of your lease and our law will generally hold you to your agreements. So if you have agreed to be…
Read More

Landlord v Tenant: Consider the Tribunal Dispute Resolution Option

Legal
We all know how easy it is for misunderstandings and disputes to arise between landlords and tenants, and whilst most can be resolved with a bit of open communication and negotiation, sometimes independent intervention is needed. Enter the Rental Housing Tribunal, which uses the Rental Housing Act to “speedily resolve” landlord/tenant disputes, to balance the rights of both sides and to protect them both from “unfair practices and exploitation”. Note that this applies only to residential housing, not to commercial or industrial leases. What’s the cost and how does it work? It’s free, and to get going you lodge a complaint with your local Tribunal. An impartial mediator is then appointed to help you settle the dispute and reach an agreement. If that fails a formal hearing is held and…
Read More

Life Partners: Beware the “Common Law Marriage” Myth!

Legal
One of the more pervasive myths in South Africa is that, if you live together for long enough as “life partners”, you have some form of legal protection because you are in a “common law marriage”. Not so! Our law has never recognised any such concept, and you could well be left high and dry when your partner dies or leaves you. The problem is that cohabitants have none of the general legal rights and duties to each other that apply to formal marriages and civil unions. The draft Domestic Partnerships Bill, which was published in 2008 and was supposed to remedy this situation, appears to have fallen off our lawmakers’ radar. So what should you do? If you don’t want to get formally married or register a civil union…
Read More

Know your consumer rights: terms to look out for when contracting with suppliers

Legal
Why is the Consumer Protection Act important? The Consumer Protection Act, Act No. 68 of 2008 ("the CPA") is a landmark Act in South African statutory law as it is directed at the protection of consumer interests. As stated in the CPA itself, the purpose of the CPA is “to promote and advance the social and economic welfare of consumers”. Courts and tribunals are obliged to be mindful of this purpose when adjudicating matters brought in terms of the CPA. Who is protected by the Consumer Protection Act? A “consumer” under the CPA includes natural persons and small business enterprises which have “entered into a transaction with a supplier in the ordinary course of the supplier’s business”, unless the transaction is specifically exempt under the CPA. It is important to…
Read More