Frequently Asked Questions

Yes, the Body Corporate can refuse your request if it doesn't comply with the scheme's rules, could negatively impact the structural integrity or aesthetic appearance of the building, unreasonably interfere with other owners' enjoyment of their units or the common property, or if you haven't provided sufficient information.

It depends on the type of change. Internal cosmetic renovations like painting or replacing carpets usually don't require permission. However, any alteration that affects the external appearance of your unit, the common property, or the structural integrity of the building will likely require the Body Corporate's approval.   
 

Depending on the nature and extent of your alterations, especially for structural changes or extensions, you may also need to obtain building plan approval from the local municipality. The Body Corporate may require proof of this approval before granting their consent.
 

Typically, you need to submit a written application to the Trustees or the managing agent. This application should clearly describe the proposed alterations and include any supporting documentation like plans, drawings, or structural engineer reports if necessary.

Yes, but alterations to exclusive use areas often still require Body Corporate approval, especially if they affect the common property or the overall aesthetic of the scheme. Check your scheme's rules for specific guidelines.   
 

Enclosing a balcony is usually considered an alteration affecting the external appearance of the building. You will likely need to submit a written application to the Body Corporate with detailed plans and obtain their approval, possibly through an ordinary resolution. Depending on the extent of the enclosure, you might also need approval from the local municipality. 
 

It depends on whether the wall is load-bearing. If it is, removing it could affect the structural integrity of the building and will definitely require Body Corporate approval and likely a structural engineer's report. Even if it's not load-bearing, your scheme's rules might still require permission.

The Body Corporate has the right to instruct you to rectify or remove the unauthorized alterations at your own cost. Failure to comply could lead to further legal action. It's always best to get approval before starting any work.

You will likely be held responsible for any damage caused to the common property as a result of your alterations and may be required to rectify the damage at your own expense. The Body Corporate might also require a deposit upfront to cover potential damages.

A special resolution requires a 75% majority vote (in number and value) of the Body Corporate members. It is typically required for more significant alterations, especially for extensions that increase the boundaries or floor area of your section, as per Section 24 of the Sectional Titles Act. 

Alterations generally involve structural changes, additions, or changes to the external appearance. These usually require formal Body Corporate approval. Renovations typically refer to internal cosmetic upgrades and may only require the Trustees' permission regarding the timing and execution of the work to minimize disruption. However, it's essential to check your scheme's specific rules as the distinction and requirements can vary.
 

Common examples include:

• Enclosing a balcony.
• Installing new windows or security gates.
• Fitting a satellite dish.
• Making any structural changes, such as removing or adding walls.
• Extending your unit's boundaries or floor area.   
• Any changes that alter the aesthetic uniformity of the building.

The rules regarding alterations are usually outlined in your scheme's registered Management Rules and Conduct Rules. You can obtain a copy of these from the Body Corporate, the Trustees, or the managing agent. It's crucial to familiarize yourself with these rules before planning any alterations.

Yes, ADR is subject to prescription laws. Prescription begins when:

• The creditor can claim payment immediately.
• The debtor has no valid defence.

To avoid expired claims, parties must ensure legal proceedings (e.g., summons) begin before the prescription period lapses. Prescription can be interrupted by validly issuing and serving a summons or legal notice if ADR fails.

Yes, divorce mediation offers a less stressful, cost-effective alternative to court battles.

What Is Divorce Mediation?
A neutral mediator helps spouses negotiate issues like asset division, child custody, and maintenance to reach a settlement. Since Mediation Rule 41A was implemented in March 2020, mediation is now mandatory before litigation.

Why Mediation?

• Cost-Effective and Faster than court proceedings
• Reduces emotional strain, especially for children
• Provides tailored, mutually agreed solutions

With the support of a skilled mediator, divorce mediation ensures a collaborative and efficient resolution.

Yes, ADR methods like mediation are commonly used in family law to:

Resolve custody and access disputes.
Develop parenting plans.
Negotiate divorce settlements amicably.
 

Yes, you have the right to handle your own divorce without hiring a divorce lawyer. However, it's strongly recommended to consult with an experienced divorce attorney. Divorce can be a complex process with serious long-term consequences if not handled properly.

Think of it like going to a professional hairdresser instead of attempting to cut your own hair. While you can technically do it yourself, a professional is more likely to achieve the best result. Similarly, if you're not familiar with divorce laws and procedures, navigating the process on your own can lead to costly mistakes, especially when children or assets are involved.

An experienced divorce lawyer will ensure your rights are protected and help you avoid potential pitfalls, leading to a smoother and more successful resolution.

Yes, having legal representation is recommended to:

Advise on your rights and obligations.
Draft agreements resulting from ADR.
Advocate for your interests during arbitration or mediation.

Alternative Dispute Resolution (ADR) provides a faster, cost-effective way to resolve workplace disputes without the need for litigation. Under the Labour Relations Act (LRA) of 1995, ADR options include:

• Bargaining Councils (BCs): For industries like metal, public service, and chemical sectors.
• CCMA: The main forum for industries without bargaining councils, such as retail and IT.
• Private Forums: Bodies like AFSA or Tokiso offer flexible, confidential resolutions.
• Labour Court: For complex disputes like mass retrenchments or strike dismissals if ADR fails.

Process:

1. Disputes start with conciliation, where a neutral mediator seeks a settlement.
2. If unsuccessful, disputes escalate to arbitration (binding decision) or the Labour Court.

Benefits:

• Cost-effective and time-efficient
• Confidential and less adversarial
• Preserves workplace relationships

ADR helps resolve workplace issues efficiently while minimizing emotional and financial strain

A neutral mediator facilitates discussions between parties.
The goal is to reach a mutually acceptable agreement.
The mediator does not impose a decision but helps explore solutions collaboratively.
8. How Does Arbitration Differ from Court Litigation?
Arbitration is less formal, with flexible procedures chosen by the parties.
The process is private, unlike public court hearings.
Arbitration is quicker, and the arbitrator's decision is binding

If no agreement can be reached between the separating parties regarding the division of property, the property will be divided according to their marriage regime, entered into before their divorce, i.e. in community of property or out of community of property (with or without the accrual system).

In contested divorce matters where misconduct was proven against one of the parties/spouses, the Court can use its discretion in how to divide the property in any manner it deems appropriate.
 

ADR is generally more affordable because:

It avoids prolonged court proceedings.
It reduces legal fees and associated costs.
Costs vary based on the complexity of the dispute and the professionals involved.

Mediation: Agreements reached are not automatically binding unless formalized in a written contract.
Arbitration: Decisions are binding and enforceable, similar to a court judgment.

In some cases, courts may recommend or require parties to attempt ADR before proceeding with litigation. However, ADR is usually voluntary unless specified in a contract or court directive.

Cost-Effective: Avoids lengthy and expensive court proceedings.
Quicker Resolutions: Typically faster than litigation.
Confidentiality: Keeps sensitive matters private.
Flexibility: Parties can agree on the rules and procedures.
Preservation of Relationships: ADR methods like mediation encourage collaboration and reduce hostility.

Mediation: A neutral mediator facilitates discussions between parties to help them reach a voluntary agreement.
Arbitration: A neutral arbitrator hears the case and makes a binding decision.
Negotiation: Parties directly engage to reach a mutually acceptable solution.
Conciliation: Similar to mediation, but the conciliator may provide recommendations to guide the parties.
Facilitation: Used for interpersonal or workplace disputes to repair relationships.

Yes, Alternative Dispute Resolution (ADR) is subject to prescription laws. Prescription begins when:

• The creditor can claim payment immediately.
• The debtor has no valid defence to the claim.

To avoid claims expiring, legal proceedings (e.g., issuing a summons) must start before the prescription period lapses. If ADR, such as mediation or arbitration, fails, prescription can be interrupted by issuing and serving a valid summons or court notice.

Understanding these time frames is essential to protecting your rights. Contact us for guidance on ensuring your claims remain enforceable

While ADR is efficient and flexible, it has limitations:

• Unequal Power Dynamics: Weaker parties may face unfair outcomes.
• Lack of Legal Expertise: Mediators may not have the legal depth required for complex cases.
• Enforceability: ADR outcomes may lack proper enforcement without court oversight.
• No Contribution to Legal Jurisprudence: ADR bypasses courts, preventing legal development.
• Resolution Not Guaranteed: Disputes can still escalate to litigation.
• Inconsistent Outcomes: ADR lacks formal rules and precedents.
• Access Issues: Marginalized groups may struggle to access skilled mediators.

Addressing these challenges—through judicial oversight, better access, and redacted publication of awards—can strengthen ADR's role in South Africa

A breach of contract occurs when one party fails to fulfill its obligations as specified in the contract without a lawful excuse.  
 

If parties cannot resolve the dispute through ADR, they can still pursue traditional litigation in court. ADR outcomes may influence court decisions, especially in mediation.

If no agreement can be reached between the separating parties in regards to whom the children will live with and how much child maintenance will get paid, the Court has the authority to make decisions regarding the children. Careful consideration of the circumstances of the matter and facts presented, together with the observation and recommendations made by a Family Advocate, enables the Court to deliver its final judgment.

A period after signing certain contracts during which the consumer can cancel without penalty. However this does not apply to all contracts therefor it is important to see the guidance of your attorney.

ADR refers to processes used to resolve disputes without going to court. These methods, such as mediation, arbitration, and negotiation, offer a faster, more cost-effective, and less adversarial way to settle conflicts.

Mediator: Facilitates communication and guides parties toward a resolution without making a decision.
Arbitrator: Acts like a private judge, reviewing evidence and making a binding decision.

ADR is suitable for a wide range of disputes, including:

Commercial and business disputes
Divorce and family law matters (e.g., custody agreements)
Property disputes
Employment and workplace conflicts
Construction and contractual disagreements
Personal injury claims

In South Africa, each spouse is usually responsible for their own legal fees in a contested divorce. However, the court may order one spouse to pay some or all of the other's legal fees in certain circumstances. 

No, a mediator does not judge the parties or tell them what the solution to their dispute is. It is for them to find a solution that meets their needs and interests. The task of the mediator is to assist them to do this. The mediator will help them to identify the real issues and explore different options for resolving those issues. The mediator assists them, using skills acquired through training and experience, to diffuse conflict and explore options for settlement. If the parties reach agreement the mediator will assist them to draft a settlement agreement. The settlement agreement is enforceable in law as a contract. It can be given additional strength by having it made an order of court, if the parties agree to this. If the parties are unable to settle their dispute through mediation then they may still resort to litigation and adjudication.

This is a complex situation with a few factors to consider.

How It Affects Your Home Loan Application

• Individual Credit Scores In South Africa, you and your spouse have separate credit scores. Your spouse's bad credit will not directly affect your credit score.   
• Joint Application When applying for a home loan, lenders will typically assess both your financial situations, including credit scores.
• Your spouse's bad credit could make it more difficult to get a loan or result in less favorable terms (higher interest rates, lower loan amount).
• Applying in Your Name Only Since you are married with an ANC with accrual, you can technically purchase a property in your name only. However, lenders will still consider your spouse's financial situation to some extent, as the property will form part of the joint estate upon divorce or death.

Consult with a lawyer specializing in property law and marital regimes to fully understand the implications of buying a property while married with an ANC with accrual.
 

The process of drafting and signing the antenuptial contract itself usually takes between one and five business days, depending on how quickly both parties can agree on the terms.  After signing, the contract needs to be registered at the Registrar of Deeds, which takes approximately eight business days.  Finally, it can take anywhere from one to three months to receive the fully registered copy of the antenuptial contract.

A "contract marriage" is essentially a marriage where the financial aspects are specifically defined and agreed upon before the marriage takes place. This is achieved through a legal agreement called an Antenuptial Contract (also known as a prenuptial agreement).  This contract outlines how assets and liabilities will be handled both during the marriage and in the event of divorce or death.

Both terms refer to the same type of agreement,  

Prenup Used in the US and other countries.
Antenuptial Contract The term used in South Africa.

The accrual system in South African matrimonial property law is designed to protect the spouse whose estate has grown less during the marriage.  It recognizes that one spouse may have contributed more financially than the other, or that one spouse's career or financial growth may have been limited due to family responsibilities, for example.  The accrual system allows the spouse with the smaller estate to claim a share in the growth of the larger estate upon divorce or death, ensuring a fairer division of the wealth accumulated during the marriage.  Essentially, it aims to equalize the financial gains made by each spouse during the marriage.

Although not legally required, it's strongly recommended that each party have their own lawyer when creating an ANC without accrual.  This ensures independent advice tailored to each person's needs, protects individual interests, helps avoid future disputes, facilitates clear negotiation, and provides an impartial explanation of the contract.  While using one lawyer might seem cheaper initially, the risks of not having independent legal advice outweigh the cost savings.  Separate lawyers are a wise investment to protect each spouse's interests.

Arrange a consultation with the Notary (an attorney with the additional qualification of a Notary Public) before the marriage. The Notary will draft the Antenuptial following the instructions obtained at the consultation and will then arrange for the parties to attend at his/her office to sign the Antenuptial in his/her presence.

The original ANC is sent to the Deeds Office for registration and must be registered within three months of the date of the marriage.

Your ANC without accrual keeps your finances separate during your life, but your will is what determines where your assets go after your death.  You have full testamentary freedom to leave any portion of your estate, including inherited assets, to your spouse in your will.

Here are some of the drawbacks just in brief, discussing these with your attorney is always the best way forward

• No Sharing of Growth
• Need to keep accurate accounting records.
• It can feel unromantic
• Potential for Financial Inequality
• Complex Estate Planning
• Perception Issues
   

Yes, an antenuptial contract (ANC) can be amended after marriage in South Africa, but only with a High Court order. Both spouses must apply for the order and provide valid reasons. The court will also consider the interests of creditors and third parties. 
 

In South Africa, registering an antenuptial contract can take between one and three months. The process can vary depending on the parties involved and the complexity of the contract. 
 

In South Africa, an antenuptial contract (ANC) and a prenuptial contract (prenup) are essentially the same thing. They both refer to a legal agreement entered into by a couple before they get married, outlining how their assets and liabilities will be managed in the event of divorce or death.   

While the term "prenuptial agreement" is more commonly used internationally, in South Africa, the legal term is "antenuptial contract."

 So, if you see either term used in the context of South African law, you can be confident that they are referring to the same type of agreement.   

In South Africa, if you get married without an antenuptial contract (ANC), you will be automatically married in community of property. This means that all assets and liabilities acquired before and during the marriage are shared equally by both spouses. 

Yes.  South African law allows couples who did not enter into an antenuptial contract (ANC) before their marriage to apply to the High Court to register a "postnuptial contract."  This process essentially creates an ANC after the fact.

Not all documents can be apostilled. Generally, public documents issued by South African authorities can be apostilled. Private documents may need to be notarised before they can be apostilled.

Not all documents can be apostilled. Generally, public documents issued by South African authorities can be apostilled. Private documents may need to be notarised before they can be apostilled.
 

The standard processing time for an apostille from DIRCO is around 6 to 7 weeks. Expedited services can reduce this time to 1 to 2 weeks.

Yes, the process can vary depending on whether the destination country is a member of the Apostille Convention. Member countries accept apostilles, while non-member countries require additional authentication steps

Yes, the process can vary depending on whether the destination country is a member of the Apostille Convention. Member countries accept apostilles, while non-member countries require additional authentication steps.
 

With Apostille the process is finalised when the Apostille Certificate and Seal are affixed to the document.
With Embassy attestation all documents must be Authenticated ( Same rules apply and also done by DIRCO) at DIRCO and then presented to the relevant Embassy for Attestation.
The attestation process is More Expensive than the Apostille process as there is an extra step and all Embassy charge an Attestation fee which can be substantial
 

Arbitration in South Africa is designed to be a binding and enforceable process.

1. The Arbitration Award
Once the arbitrator has heard both sides and considered the evidence, they will issue a written, final, and binding arbitration award. This award is similar to a court judgment in that it resolves the dispute between the parties.

2. Enforcing the Award
Generally Binding: In most cases, the parties will comply with the arbitration award voluntarily. This is because the arbitration agreement they signed usually states that the award will be final and binding.

• Making the Award an Order of Court: If one party refuses to comply, the other party can apply to the High Court to have the arbitration award made an order of court. Once the court makes the award an order, it has the same force and effect as a court judgment, and can be enforced in the same way. This may involve:
  • Execution: The winning party can use court processes to seize and sell the losing party's assets to satisfy the award.
  • Contempt of Court: If the losing party still refuses to comply, they can be held in contempt of court, which can lead to fines or even imprisonment.

3. Challenging the Award
Limited Grounds - The grounds for challenging an arbitration award are very limited. This is intentional, as it promotes the finality of arbitration and prevents parties from using delaying tactics.

• Grounds for Challenge: The main grounds for challenging an award include:
  • Procedural irregularities: If the arbitration process was not conducted fairly or in accordance with the arbitration agreement.
  • Bias: If there is evidence of bias on the part of the arbitrator.
  • Public policy: If the award is contrary to the public policy of South Africa.
• Court Review: A party can apply to the High Court to have the award set aside on these limited grounds. However, the court will generally be reluctant to interfere with the award unless there is a clear case of impropriety or illegality.                                                                                                                                                                                                                                                                                                                                                           
  In summary, arbitration awards in South Africa are generally binding and enforceable. The legal framework provides mechanisms to ensure compliance, and courts will only interfere in limited circumstances to uphold the integrity of the arbitration process.                   

• Be Organized: Present your case in a clear and organized manner, with supporting evidence for your claims.
• Be Concise: Avoid unnecessary repetition or lengthy arguments. Get straight to the point.
• Be Professional: Maintain a professional attitude and demeanor throughout the proceedings.
• Listen Carefully: Pay close attention to the arbitrator's questions and instructions, as well as the other party's arguments.
• Seek Legal Advice: It is always advisable to seek legal advice from an experienced attorney who can guide you through the arbitration process.

By adhering to these guidelines, you can ensure that you present your case effectively and maintain a positive and productive atmosphere during the arbitration proceedings.

• Disrespectful Behavior: Avoid interrupting the arbitrator, opposing counsel, or witnesses. Maintain a respectful demeanor throughout the proceedings.
• Misrepresenting Facts: Honesty and transparency are crucial. Do not exaggerate, fabricate, or withhold information.
• Unpreparedness: Ensure you are well-prepared with your evidence, documents, and arguments. Lack of preparation can weaken your case.
• Ignoring Deadlines: Adhere to deadlines set by the arbitrator for submissions and other procedural matters.
• Attempting to Influence the Arbitrator Improperly: Do not engage in ex-parte communication with the arbitrator outside of the formal proceedings.
• Disruptive Conduct: Refrain from any behavior that could disrupt the proceedings, such as shouting, arguing excessively, or making personal attacks.

Irrelevant Information: Focus on presenting information that is directly relevant to the dispute at hand. Avoid rambling or introducing unrelated issues.
Emotional Outbursts: While arbitration can be emotionally charged, it's important to remain composed and avoid emotional outbursts or personal attacks.
Hearsay or Speculation: Stick to presenting factual evidence and avoid relying on hearsay or speculation.
Admitting Fault Unnecessarily: Be cautious about admitting fault or liability unless it is absolutely necessary.
Making False Accusations: Do not make false accusations against the other party or their representatives.
Threatening or Intimidating: Avoid any language or behavior that could be perceived as threatening or intimidating.

While written employment contracts are always recommended, South African law does recognize verbal agreements as legally binding, provided they contain all the essential elements of a valid contract: offer, acceptance, mutual consent, and consideration.  However, proving the terms of a verbal agreement in court can be significantly more challenging than proving a written contract.

Verbal Agreements -  Legally Binding but Difficult to Prove

Although it's best practice to have employment contracts in writing, South African law acknowledges the validity of verbal agreements.  The primary hurdle with these agreements lies in proving their exact terms should a dispute arise. Without a written record, it often becomes a matter of one party's word against another's.

In South Africa, an employee can dispute a term in their employment contract even after signing it. If an employee believes a term is unfair, or that it infringes on their rights as protected by the Basic Conditions of Employment Act (BCEA), they can pursue recourse.  However, it's always recommended that employees first attempt to resolve the issue internally with their employer through open communication, negotiation, or consultation.

Key Considerations to remember! 

Unilateral Changes are Unlawful: Employers cannot unilaterally change the terms of an employment contract without proper consultation and agreement with the employee. Significant changes require mutual consent.
Dispute Resolution If internal resolution efforts fail, the employee has avenues for dispute resolution. They can refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or, in certain circumstances, approach the Labour Court for legal intervention.
Section 77 of the BCEA This section of the BCEA specifically provides employees with the right to challenge contractual terms they deem unfair in the Labour Court.
Legal Advice is Essential: If you are considering disputing a term in your employment contract, it is highly advisable to consult with an employment law specialist at Aucamp Attorneys. We can assess your situation, explain your rights and options, and help you determine the most appropriate course of action. Understanding the legal complexities of employment contracts is crucial for a successful outcome. Contact us today for a consultation.

Unilateral Changes to Job Requirements -  What are Your Rights?
In South Africa, employers cannot unilaterally change an employee's job requirements.  Significant alterations to an employee's duties and responsibilities must be discussed and agreed upon with the employee, typically through a fair consultation process.  This principle is protected by the Labour Relations Act (LRA), which prohibits unilateral changes to employment conditions.

Protecting Your Contractual Rights
Employees have legal recourse if their employer attempts to unilaterally change their job description.  Section 77(3) of the Basic Conditions of Employment Act (BCEA) empowers employees to approach either the civil courts or the Labour Court to resolve any disputes concerning their employment contract.  Importantly, this right applies even if the employment contract is not in writing.  Disputes relating to oral or tacitly agreed contracts can also be taken to court.

Unfair Dismissal
Furthermore, if an employee is dismissed for refusing to accept unilateral changes to their employment conditions, they may have grounds to sue the employer for automatically unfair dismissal.

Need Legal Assistance?
If you are facing unilateral changes to your job requirements, it's essential to understand your rights.  Contact Aucamp Attorneys today for expert legal advice. We can help you navigate the complexities of employment law and protect your interests.

Your rights when your job ends are protected by law. We have summarised a few of the key points

1. Fair Dismissal  Your employer needs a valid reason (like misconduct, poor performance, or retrenchment) and a fair process (like a hearing or consultation).
2. Notice You and your employer must give notice before termination.  The law sets minimums, and your contract may require more.
3. Severance Pay You usually get severance pay if you're retrenched (one week's pay per year of service).  Other situations may also qualify.
4. Unfair Dismissal If your dismissal is unfair, you can challenge it at the CCMA.  They may order reinstatement or compensation.
5. Other Rights You're entitled to a certificate of service, payment for unused leave, and possibly UIF benefits.

Get Legal Help Your contract is important.  If you're facing termination, contact Aucamp Attorneys for expert legal advice to protect your rights! 
 

Some of the basic rights You as an employee have are 

1. Not to be unfairly dismissed or discriminated against
2. To be provided with appropriate resources and equipment
3. To have safe working conditions
4. To receive the agreed remuneration on the agreed date and time
5. To receive fair labour practices
6. To be treated with dignity and respect
7. To non-victimisation in claiming rights and using procedures
8. To leave benefits and other basic conditions of employment as stipulated in the BCEA.
    

You can check your credit record by contacting any of the registered credit bureaus in South Africa. You are entitled to one free credit report per year from each bureau. Major credit bureaus include TransUnion, Experian, Compuscan, and XDS (Xpert Decision Systems).
 

You get negatively listed (or "blacklisted") by having adverse information reported to credit bureaus. Common reasons include:

• Defaulting on loans or credit agreements: Failing to make payments as agreed.
• Judgments: Court judgments against you for unpaid debt.
• Consistent late payments: Repeatedly paying accounts after the due date.
• Accounts handed over for collection: When creditors give up on collecting the debt themselves and pass it to debt collectors.
• Sequestration or liquidation: Being declared insolvent (for individuals and businesses).

While "blacklisting" is a common term, it's not a formally defined legal term anymore in South African legislation. It generally refers to the negative listing of consumer credit information with credit bureaus. More accurately, it signifies being recorded as having a poor credit history, which can severely impact your ability to access credit and other services.
 

Your credit report will contain personal information, credit history (types of accounts, payment history), public record information (judgments, defaults), and credit inquiries. It will show both positive and negative information. The "blacklist" aspect is reflected in the negative listings and your overall credit score.

There isn't a central official "blacklist" maintained by the government. Instead, credit bureaus are the entities that hold and share negative credit information. Credit providers (like banks, retailers, lenders) report negative payment behavior to these bureaus, and then they create and maintain these credit records, which are often colloquially referred to as "blacklists." It's the credit bureaus that hold the information, and credit providers that use it to assess risk.

As an "affected person" (like a creditor or employee), you have the right to oppose a Business Rescue application if you believe it's not justified.  Here's how:

• Act Quickly - Urgency is Key: Business Rescue applications are typically treated as urgent by the courts, so time is limited.
• Formal Opposition Process: You oppose in the same way you'd oppose any court application: * Notice of Intention to Oppose: File and serve a formal notice stating you will oppose the application. * Answering Affidavit: File and serve an "answering affidavit" – your sworn statement outlining your reasons for opposing and presenting your evidence. You'll need to do this within the timeframes specified in the initial application documents.
• Desired Outcome: In your opposition, you can ask the court to: * Dismiss the Business Rescue Application: Stop the Business Rescue process entirely. * Order Liquidation: Request that the company be placed directly into liquidation instead of Business Rescue.

The business rescue process is intended to be completed within three months. However, it can be extended with the consent of creditors or a court order.
 

In voluntary Business Rescue, strict timelines must be followed after the board of directors passes a resolution to commence proceedings.  If these deadlines are missed, serious consequences follow:

• Automatic Resolution Lapse: The initial resolution to begin voluntary Business Rescue becomes invalid ("lapses and is a nullity"). It's as if the resolution never happened.
• Three-Month Waiting Period: The company is barred from initiating voluntary Business Rescue again for three months from the date of the failed resolution. The only exception is if a court grants special permission to file sooner, based on "good cause."
• Legal Challenge by Affected Persons: "Affected persons" (like creditors or employees) can go to court to formally challenge and invalidate the resolution if the company hasn't followed the correct procedures and timelines.

If the business rescue is successful, the company will be returned to its management and continue operating. The business rescue plan will guide its future operations and financial management.
 

If the business rescue is unsuccessful, the company may be placed into liquidation. This means its assets will be sold off to pay creditors, and the company will cease to exist.

A business rescue plan is a document that outlines how the company will be restructured and returned to financial health. It typically includes:   

• An analysis of the company's financial position
• Proposed changes to the company's operations
• Strategies for debt reduction and revenue generation
• A timeline for implementation   
• Projected financial outcomes

The business rescue practitioner is a qualified professional appointed to oversee the business rescue process. Their key responsibilities include:   

• Taking control of the company's management
• Investigating the company's affairs and financial position   
• Developing and implementing a business rescue plan   
• Consulting with creditors and other stakeholders   
• Ensuring compliance with the Companies Act

While some basic online calculators might provide a rough estimate, it's important to understand that these are not legally binding and don't account for the specific nuances of each case. The calculation of child maintenance is highly fact-dependent and requires a thorough assessment of individual circumstances.

Yes, a child maintenance order can be varied (increased or decreased) if there is a significant change in circumstances. This could include changes in the child's needs (e.g., starting tertiary education, requiring specialized medical treatment) or changes in either parent's income or expenses. An application must be made to the Maintenance Court to request a variation.   
 

While you can approach the Maintenance Court directly, engaging a lawyer, like the experienced professionals at Aucamp Inc., can be highly beneficial. We can provide expert guidance on the relevant legal principles, assist you in gathering the necessary financial information, help you negotiate a fair maintenance agreement, and represent you in court if necessary. This can significantly increase your chances of reaching a just and equitable outcome that prioritizes your child's best interests.   

While the amount of time a child spends with each parent isn't the sole determining factor, it can be taken into consideration. If parents share care responsibilities relatively equally, the court might adjust the maintenance contributions accordingly, focusing on the actual expenses incurred by each parent for the child.

The court will consider the gross income of both parents, as well as their reasonable expenses and financial obligations. The aim is to ensure that both parents contribute proportionally to the child's needs based on their respective financial means. The parent with a higher income will generally be expected to contribute a larger share.

While there isn't a strict mathematical formula dictated by law in South Africa for calculating child maintenance, the courts follow certain principles and consider various factors to determine a fair amount. The primary principle is always the best interests of the child.

If a parent is unemployed, the court will still consider their potential earning capacity. They may be required to actively seek employment. For parents with variable incomes (e.g., freelancers or business owners), the court will often look at their average income over a period of time to determine a fair maintenance amount.

If a parent defaults on their child maintenance obligations, the other parent can take legal action through the Maintenance Court. Enforcement options available include:

• Garnishee Order: Deducting the maintenance amount directly from the defaulting parent's salary.   
• Attachment of Assets: Seizing and selling the defaulting parent's assets to cover the outstanding maintenance.   
• Emoluments Attachment Order: Similar to a garnishee order, but can apply to other forms of income.
• Blacklisting: Reporting the defaulting parent to credit bureaus.   
• In severe cases of willful non-payment, criminal charges can be pursued.   

Child maintenance is intended to cover the child's essential needs and contribute to their overall well-being. This generally includes:   

• Basic Living Expenses: Food, clothing, and accommodation.
• Education: School fees, uniforms, stationery, and extra-curricular activities related to schooling.
• Healthcare: Medical aid contributions, doctor's visits, medication, and other necessary medical expenses.   
• Childcare: Creche or after-school care costs.   
• Other Needs: Depending on the child's specific circumstances and the parents' financial capabilities, maintenance may also contribute towards things like transport, entertainment, and other reasonable expenses. 

Both parents have a legal obligation to financially support their child, regardless of their marital status or living arrangements. The parent with whom the child primarily resides typically incurs the day-to-day expenses, while the other parent usually contributes through regular maintenance payments. However, this can vary depending on the specific circumstances and parenting arrangements.   
 

The annual budget process should be transparent and involve owner input.  Typically:

• Budget Preparation: The Trustees (often with the managing agent) draft a proposed budget for the next financial year.
• AGM Presentation and Discussion: The proposed budget is presented to all owners at the Annual General Meeting (AGM). Owners have the right to:
• Receive and Review the Budget in Advance: Budget documents should be circulated to owners before the AGM.
• Ask Questions: At the AGM, owners can ask questions, seek clarification on budget items, and raise concerns.
• Propose Amendments: Owners can propose amendments to the budget during the AGM (although significant changes may require further consideration).
• Vote on the Budget: Owners vote to approve (or reject and potentially amend) the budget.
• Active participation in the AGM and budget process is crucial for owners to understand and influence how levies are set and how scheme finances are managed.
   

"Special levies" are once-off levies raised for unforeseen and necessary expenses that were not included in the approved annual budget. They are typically raised for urgent or unexpected repairs or projects.  Examples include:

• Emergency roof repairs after storm damage
• Unplanned major plumbing failures
• Urgent security system upgrades

Yes, you are legally obligated to pay special levies if they are validly raised by the Trustees for genuinely unbudgeted and necessary expenses.  Trustees have the authority to raise special levies without needing owner approval at a general meeting, but the expenditure must be demonstrably outside the scope of the approved annual budget.
 

Your levies are divided into two main funds, each covering different types of expenses:

• Administrative Fund: This covers the day-to-day running costs of the scheme.  Think of it like the "operational" budget. This fund pays for things like:
  • Security services
  • Garden and common area maintenance
  • Building insurance premiums
  • Water and electricity for common areas
  • Managing agent fees
  • Routine repairs (like fixing gate motors or pool cleaning)
  • CSOS levies
  • General administration and bank charges
     
• Reserve Fund: This is for long-term financial planning and covers major, less frequent expenses related to the upkeep and capital improvement of the common property. It's like a "savings account" for the building. This fund covers projects outlined in the 10-Year Maintenance Plan, such as:
   
  • Building repainting
  • Roof replacements
  • Lift upgrades
  • Major plumbing or electrical work
  • Driveway resurfacing

Understanding this breakdown helps you see where your levy contributions are going and why both funds are essential.
 

• Disagreement: If you believe your levy is incorrectly calculated or unfair, first discuss your concerns with the managing agent or trustees.  Review your PQ, the approved budget (available from the Body Corporate), and ask for a clear explanation of the calculation.  Attend the AGM to voice your concerns and understand the budget process. If you still believe there's a valid issue, you can formally dispute the levy through the CSOS dispute resolution process.
• Inability to Pay: If you are genuinely struggling to pay your levies due to financial hardship, contact the managing agent or trustees immediately. Ignoring the situation will worsen it.  While you are legally obligated to pay,  it may be possible to discuss payment arrangements or explore potential solutions, although this is at the discretion of the Body Corporate.  Ignoring levy payments can lead to legal action and further financial penalties.

Important Note: You cannot legally withhold levy payments even if you have a dispute or believe the Body Corporate owes you money. You must continue to pay your levies and pursue formal dispute resolution through the CSOS to address your concerns or recover any amounts you believe are due to you.

A comprehensive levy statement should, at minimum, clearly show:

• Administrative Fund Levy Amount
• Reserve Fund Levy Amount
• CSOS Levy Amount
• Exclusive Use Area (EUA) Levy (if applicable)
• Utility Charges (if applicable) if not individually metered
• Any Arrear Amounts (if applicable)
• Total Amount Due
• Payment Due Date
• Body Corporate Bank Account Details
• Ideally, it should also include a reference to your unit and the levy period.
• If your statement is unclear or lacks detail, request clarification from the managing agent or trustees.  Transparency in levy statements is crucial.
   

You should consider seeking legal advice from Aucamp Attorneys if you are experiencing any of the following in relation to sectional title levies:

• Unclear or Unfair Levy Calculations: You suspect errors in how your levies are calculated or believe the levy allocation is unfair or not in accordance with the STSMA or scheme rules.
• Unreasonable Levy Increases: You experience significant or unexplained levy increases and believe they are unjustified or not properly budgeted.
• Disputes Over Special Levies: You question the validity or necessity of a special levy raised by the Trustees.
• Facing Legal Action for Levy Arrears: You are in arrears with your levies and are facing legal action from the Body Corporate.
• Disputes with the Body Corporate over Levy Matters: You have attempted to resolve levy disputes internally but have reached an impasse and need assistance with CSOS dispute resolution or further legal options.
• Need Clarity on Your Rights and Obligations: You are unsure of your rights and responsibilities regarding levy payments, special levies, or the budget process within your sectional title scheme.

Aucamp Attorneys specializes in sectional title law in Johannesburg and can provide expert guidance to protect your rights and navigate complex levy-related issues. Contact us for a consultation to discuss your specific situation.

Yes, it is possible, but not guaranteed.

The employer and employee may agree in writing to postpone arbitration and submit such an agreement to the CCMA or bargaining council not less than seven (7) days before the hearing.

If there is no agreement either party may apply on affidavit for postponement, but a mere application does not guarantee that postponement will be granted.
 

When the employee has not managed to refer the dispute to the CCMA or bargaining council within thirty (30) days, the employee must apply for condonation for the late referral, in other words, to excuse or condone the late referral.

A condonation application must be completed by the employee or his/her representative and a copy thereof must be served on the employer and returned to the CCMA or bargaining council with proof of service on the employer attached to the referral form. The employer has the right to respond to the condonation application by affidavit within five days of receiving it.

The condonation application should deal with the points listed below, with the employer being entitled to respond accordingly:

• degree of lateness;
• reason why the referral is late;
• prospects of success (the employer may explain why it is likely to succeed in defending the claim against it);
• prejudice the employer will suffer if the matter would proceed (for example, the employer would be prejudiced by a long delay if witnesses are no longer available);
• any other relevant factors.
   

In the event that the parties reach an agreement to settle the dispute at conciliation – or during arbitration proceedings – the terms of the settlement will be included in a signed settlement agreement.

That signals the end of the dispute that has been referred to the CCMA or bargaining council.

An application to the Labour Court to set aside or correct a CCMA decision.

An application to the Labour Court to set aside or correct a CCMA decision.

An urgent court order to stop someone from doing something.

Amongst other things - Compensation, reinstatement, back pay, interdicts, declaratory orders.

Remember that in an arbitration, the test is whether the employer has been able to prove on a balance of probabilities, that the dismissal was procedurally and substantively fair. The criminal proceedings test of ‘beyond a reasonable doubt’ does not apply to CCMA and bargaining proceedings.

If the employer fails to prove that the dismissal was procedurally (a fair procedure was followed) and substantively fair (for a fair reason), the commissioner may order:

• Reinstatement, which means that the employee will go back to work on the same terms and conditions that applied prior to dismissal. The reinstatement may be retrospective from the date of the dismissal or from a later date. Back-pay may be awarded from the date of reinstatement until the date that the employee is to return to work.
• Re-employment, which means that the employee will be employed on new terms and conditions.
• Compensation, meaning the employee must be paid an amount which is just and equitable to compensate him/her for the unfairness.

If the dismissal is found to be only procedurally unfair, the commissioner may decide whether or not to order compensation.  An order of reinstatement or re-employment only applies to a dismissal that is substantively unfair.
 

The parties will receive a decision within fourteen (14) days of the hearing unless this period is extended by agreement of the CCMA Director.
 

Yes, a parenting plan can be amended if there is a material change in circumstances that affects the child's best interests. Either parent can apply to the court to have the plan reviewed and potentially changed.

Yes, grandparents can apply to the court for contact with their grandchildren if they are being denied contact and the court deems it to be in the child's best interests.
 

Yes, once a parenting plan is drafted and agreed upon by both parents, it can be made an order of court. This makes it legally binding, and both parents are obligated to adhere to its terms.
 

There is no specific age at which a child can legally decide where they want to live. However, the court will take the child's views and wishes into account, depending on their age, maturity, and understanding of the situation. The older and more mature the child, the more weight the court is likely to give to their preferences, but the ultimate decision will always be based on the child's best interests.

Unmarried fathers have the same rights and responsibilities as married fathers in terms of the Children's Act. They can apply for care and contact orders and have a say in their child's upbringing. Establishing paternity is usually the first step for an unmarried father to fully exercise these rights.

The court will consider several factors, including but not limited to:

• The child's best interests as the paramount consideration.
• The wishes of the child (depending on their age and maturity).
• The relationship the child has with each parent, siblings, and other significant people in their lives.
• Each parent's ability to provide for the child's needs (emotional, physical, educational).
• Each parent's willingness to co-parent and maintain a positive relationship with the other parent in the child's best interests.
• Any history of abuse or neglect by either parent.

Relocation with a child, especially across provincial or international borders, usually requires the consent of the other parent or an order from the court. The court will again prioritize the child's best interests when considering such applications.

If parents cannot agree on a parenting plan, they may be required to attend mediation with a qualified professional to try and reach an agreement. If mediation is unsuccessful, either parent can approach the court to make a decision regarding care and contact arrangements. The court will then consider all relevant information and make an order in the child's best interests.
 

"Care" refers to a parent's responsibility and right to:

• Provide the child with a suitable place to live.
• Provide the child with daily care (including feeding, hygiene, and ensuring safety).
• Guide the child's behaviour and development.
• Make decisions about the child's upbringing, including education, healthcare, and religious instruction.

"Contact" refers to the right of a child and a parent to:

• Maintain a personal relationship.
• Communicate with each other regularly (in person, by phone, email, etc.).
• Visit each other.

A child custody and parenting plan is a written agreement between parents that outlines how they will raise their child after a separation or divorce. It is a legal document that must be approved by a court and becomes part of the divorce settlement or custody order.

A parenting plan is a written agreement between parents that outlines how they will co-parent their child after separation or divorce. It typically covers aspects such as:

• Where the child will live (primary residence).
• How contact with the other parent will take place (schedule, frequency, holidays).
• How decisions about the child's upbringing will be made (jointly or by one parent).
• Financial responsibilities for the child.
• Communication methods between parents.

The term "custody" is no longer the official legal term. The Children's Act uses the terms "care" and "contact".

The primary law is the Children's Act 38 of 2005. This Act emphasizes the paramountcy of the child's best interests in all matters concerning the child.

The Family Advocate is a legal professional appointed by the Department of Justice and Constitutional Development. Their role is to act as the guardian ad litem (representative) of the child in court proceedings involving care and contact. They investigate the circumstances of the case, interview the parents and the child (if appropriate), and make recommendations to the court regarding what is in the child's best interests.

South African law does not automatically grant primary care to one parent over the other. The focus is on the child's best interests. Courts will consider various factors to determine the most suitable living arrangements and care responsibilities. It's common for parents to share care responsibilities where appropriate.

There isn't a rigid formula for calculating child maintenance in South Africa. Instead, Maintenance Courts consider a range of factors to determine a fair and appropriate amount, primarily focusing on:

• The Child's Needs: The court will assess the child's reasonable needs based on their age, health, education, and standard of living before the parents separated (as much as possible).
• Parents' Respective Means: The court will examine the income, earning capacity, assets, and expenses of both parents. Both parents have a duty to contribute proportionally to the child’s maintenance based on their ability to pay.
• Standard of Living: The court may consider the family's prior standard of living and attempt to maintain a reasonable standard for the child, where financially possible, within the context of both parents’ current financial situations.
• Number of Dependents: The court considers if either parent has other dependents to support, which can affect their capacity to pay maintenance.

While there's no formula, the aim is to achieve a fair and proportionate contribution from both parents, ensuring the child's needs are met to the best extent possible based on available resources. Aucamp Inc. can assist you in preparing a realistic maintenance budget and presenting your financial information effectively to the Maintenance Court.

Yes, even if an unmarried father has not yet formally acquired full Parental Rights and Responsibilities, he is still legally obligated to contribute to his child's maintenance.  The duty to maintain a child is separate from Parental Rights.
While Parental Rights grant you broader decision-making powers and the right to care and contact, the responsibility for maintenance arises simply from being the child's biological parent.  The mother (or guardian) can apply for a Maintenance Order against an unmarried father even if parental rights are not yet formally established.
Seeking Parental Rights is often in the best interests of both the father and the child. Aucamp Inc. can assist unmarried fathers in both establishing their Parental Rights and navigating Maintenance proceedings.
 

Child maintenance is intended to cover a child's reasonable needs.  These typically include:

• Basic Needs Food, clothing, housing/shelter, and basic toiletries.
• Education School fees, school uniforms, stationery, textbooks, extra tutoring, and related educational expenses.
• Healthcare Medical aid contributions, doctor's visits, medication, dental care, and necessary medical treatments.
• Childcare Crèche or daycare fees.
• Extracurricular Activities Reasonable costs for sports, cultural activities, and hobbies that contribute to the child's development.
• Other Reasonable Needs Depending on the family’s standard of living and the child’s specific circumstances, maintenance can also cover reasonable expenses like transport, communication, and pocket money.

The specific expenses covered are determined on a case-by-case basis, considering the child's needs and the parents' financial capabilities. Aucamp Inc. can advise you on what expenses are typically considered reasonable for child maintenance in South Africa.

The primary claimant for child maintenance is usually the parent who has primary care of the child (the primary caregiver).  This is often the mother, but it can also be the father or another guardian.  Specifically, the following individuals can claim:

• The Parent with Primary Care: The parent with whom the child primarily resides and who is responsible for their day-to-day care can claim maintenance from the other parent.
• Legal Guardians: If someone other than a parent is the child's legal guardian, they can also claim maintenance from the child's parents.
• On behalf of the Child: In some cases, a social worker or other representative may claim maintenance on behalf of a child, particularly if the primary caregiver is unable to do so or if the child's interests are not being adequately represented.
   

Both parents of a child have a legal duty to contribute to their child’s maintenance in South Africa. This obligation rests on:

• Biological Parents: Both the mother and father of a child, regardless of marital status, have a primary duty to maintain their child.
• Adoptive Parents: Adoptive parents assume the same legal maintenance obligations as biological parents once adoption is finalized.
• In certain circumstances, other individuals, such as grandparents or step-parents, may have a secondary or contributing maintenance obligation, but the primary duty lies with the parents. Aucamp Inc.can clarify the specific maintenance obligations in your situation.

Do not ignore the problem and hope it goes away. It won't. The good thing about a negative credit report is that it can be fixed. Find out what is considered bad and good for your credit and how to recover from your credit mistakes.

Order your credit report and review it carefully. Make a list of your debts and prioritise them from most important to least important. Cut out all unnecessary expenses and use the extra cash to pay off your debts one by one. Negotiate or consolidate your debt by talking to your credit/service providers about a rate reduction.

Never ignore letters of demands or summonses to appear in court for non-payment. Phone the credit/service provider and try and adapt your repayment plan. Stick to your plan and be disciplined—do not spend what you can’t afford to repay and look at your Credit Report monthly to track your improvement.

A notice is a legal action that has been taken against you after you have failed to pay a debt or outstanding account. Notices include administration orders, provisional sequestrations, sequestrations and rehabilitation orders. Administration orders remain on your profile for 5 years, rehabilitation orders remain for 5 years and sequestrations remain for 5 years if no rehabilitation order is granted.

10. What if I cannot repay my debts - what are the next steps?
When a consumer cannot afford to pay their debts, they have the right to approach a debt counsellor for assistance. (see National Credit Act) The counsellor will help the consumer to restructure or rearrange their debt payments if the consumer is deemed to be overindebted-this arrangement can be made an order of court.

Debt counsellors must be registered with the National Credit Regulator and charge for their services. Interest will also continue to be applied to the debt.

Consumers should sure that they understand exactly what will happen under counselling and should know upfront what the fees or charges will be.Once a consumer has signed for debt counselling, this is noted on the credit bureau’s consumer profile and he/she is not allowed to obtain further credit until the counselling process is finalized or withdrawn.

It is a 3 digit number that is created representing your overall credit behavior. It includes score ranges that will help you understand your score.

A consumer credit report will be updated with new information provided over time by credit/service providers. Your TransUnion Credit Score is calculated based on the latest information contained in a credit report at the time the score is requested, so a score generated a month ago will probably be the same as one calculated today.

If you find yourself unable to manage your debt, you may apply for an administration order in the Magistrates Court if your debt does not exceed R50 000. The magistrate examines your financial position and appoints an administrator to whom you make regular payments.

These payments are divided proportionately among the various stores and banks to which you may owe money. An administration order remains on your credit report for a period of 5 years or until it has been rescinded.

They have the right to contact you for the payment of a debt.
They have the right to charge the prescribed fees for the work done in collecting a debt.

The right to obtain legal advice before signing anything. In the legal world your signature on a document, for instance an acknowledgement of debt, can have serious financial consequences. 

To be treated with dignity at all times. 
The right to confidentiality. 
The right not to be contacted before 6 in the morning or after 9 in the evening, or on a Sunday. 
The right not to be harassed, humiliated, embarrassed or threatened. 
To receive a statement should you request one free of charge once every six months

Only registered debt collectors can legally collect outstanding debts. 

Begin by requesting the following information:

•The full identity of the debt collector and the company, as well as proof of registration with the Council for Debt Collectors (CFDC).
•The name of the original creditor you owe, what the debt is for, and when it was incurred. 
•The total amount of the capital debt including the interest and collection costs. 
•Do not share your personal and financial information such as your bank details or ID number over the telephone. 
•Do not avoid communication from a registered debt collector, be cooperative so that you can make a proper arrangement towards paying your debt/s. 

Generally, if an account is 90 days and over. At this point, most creditors have already broken the terms and conditions of the credit granted and the relationship has soured.

By now, the debtor has received all statements and letters and the creditors have also expressed its concerned lack of response for payment.  The writing is on the wall - the debtor has a cash flow problem. Be that as it may, a collection problem exists and the account should now be placed with a collection agency.

The Council was established by the Debt Collectors Act 114 of 1998 to regulate the occupation of debt collectors. We are the only regulatory body for the debt collection industry in South Africa. The Council monitors the actions of debt collectors ensuring that their actions comply with the code of conduct for debt collectors and further ensuring that they charge only those fees allowed by the Act.

 Yes, if they are also registered as a marriage officer.

Yes, in a similar way to how marriiage works. 

A person authorized by the state to conduct civil unions/marriages.

Legally, there is no difference. Both offer the same rights and responsibilities. The choice is primarily one of personal preference.

 You can get married or enter into a civil union in South Africa at the following locations

• Home Affairs Offices: These are government offices that handle civil marriages, customary marriages, and civil unions.   
• Churches or Religious Buildings: If you want a religious ceremony, you can get married in a church or other building used for religious services, provided the officiant is an authorized marriage officer.   
• Other Venues: With permission, you can also get married in places like a private home, a public office, or even a hospital if someone is seriously ill.   

It's important to remember that the marriage officer conducting the ceremony must be authorized by the Department of Home Affairs.

A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union.

You can update a Cohabitation Agreement to reflect changes in your relationship or personal circumstances. Reviewing and updating the agreement periodically or after significant life events like buying a property or having children is essential. Updating your agreement will ensure that it remains relevant and provides adequate protection.

To make your Cohabitation Agreement legally binding in South Africa, it must meet specific requirements:

• Document in Writing: Put the entire Cohabitation Agreement in writing. This step ensures clarity and prevents misunderstandings between both partners.
• Voluntary Signature: Both partners must voluntarily sign the agreement, demonstrating their informed consent and commitment to its terms.
• Witnessed: To strengthen the agreement’s validity, consider having it witnessed by an impartial third party who can confirm the authenticity of the signatures.
• Notarization: It is advisable to sign and witness it before a registered Notary Public to ensure its legality. This legal professional will verify the identities of both parties and confirm their willingness to enter into the agreement.

No. South Africa does not recognize "common-law marriage." Simply living together, no matter how long, does not automatically grant you the same legal rights as marriage. A Cohabitation Agreement is a proactive step to create legal rights and obligations that don't automatically exist.

 A Cohabitation Agreement, also called a Life Partnership Agreement or Domestic Partnership Agreement, is a legal contract between unmarried couples living together. It outlines your rights and responsibilities while cohabiting and, importantly, how assets and finances will be divided if you separate. Think of it as a pre-nup, but for couples who are not married.

In South Africa, unmarried couples don't automatically have the same legal protections as married couples. A Cohabitation Agreement bridges this gap, providing legal certainty and protecting both partners' interests, especially regarding finances and property, during the relationship and if it ends. It avoids uncertainty and potential disputes down the line.

A Cohabitation Agreement primarily regulates your finances and property during your lifetime and in case of separation. While it doesn't grant inheritance rights itself, it can be valuable in estate administration. It can document joint assets and financial contributions, which could support a surviving partner's claims, particularly if there's a maintenance claim or complexities in the estate. However, it is not a substitute for a Will when it comes to inheritance.
 

The Judicial Matters Amendment Act is a positive step! It broadens the definition of "spouse" in the Maintenance of Surviving Spouses Act. This means you may now have a legal right to claim maintenance (financial support) from your deceased partner's estate if you were in a permanent life partnership and financially dependent. However, it does not grant automatic inheritance rights under the Intestate Succession Act. A Will is still the only way to guarantee inheritance.

Yes, a properly drafted and valid Will that clearly names your partner as a beneficiary is the most legally secure way to ensure they inherit your assets. Aucamp Attorneys can help you create a Will that is legally sound and reflects your exact wishes, minimizing the risk of challenges to your estate.
 

Generally, no. South African law doesn't automatically grant inheritance rights to unmarried cohabiting partners under the Intestate Succession Act (if there's no Will). Unlike marriage, there's no automatic legal recognition of inheritance for life partners simply because you lived together, regardless of the length of the relationship.

Unfortunately, South Africa does not recognize "common-law marriage." The length of cohabitation doesn't automatically create the same legal rights as marriage. To ensure you are provided for, proactive legal steps like creating a Will are essential.

No Will = Intestate:  If a person passes away and they haven't created a legally valid Will that outlines how they want their assets to be distributed, they are said to have died intestate.

It makes it easier for surviving partners in "permanent life partnerships" to claim maintenance if they were financially dependent on the deceased. It doesn't change inheritance laws. You can now pursue a maintenance claim under the Maintenance of Surviving Spouses Act, which is a more direct legal route than before. However, proving your eligibility (permanent life partnership, dependency) is still necessary, and it's about maintenance, not automatic inheritance of the whole estate.

If your partner dies without a Will, their estate will be distributed according to South Africa's laws of intestate succession. These laws prioritize legally recognized spouses and blood relatives as heirs. As a cohabiting partner, you would likely not automatically inherit and could be excluded from inheriting from their estate unless you are specifically named in a valid Will.

Seek legal advice immediately from Aucamp Attorneys. As the surviving partner, you may have grounds to claim maintenance from the estate under the amended Maintenance of Surviving Spouses Act if you were in a permanent life partnership and financially dependent. An attorney can advise you on your rights and guide you through the deceased estate administration process.

While a Cohabitation Agreement can express the parties’ intentions regarding children, it cannot override the provisions of the Children’s Act 38 of 2005. Courts prioritize the child’s best interests, and any agreements must align with this principle.
 

Yes, absolutely. South African law clearly states that both biological parents have a legal duty to maintain their children, regardless of whether they are married, unmarried, or cohabiting. This responsibility is enshrined in the Children's Act and the Maintenance Act.
 

Yes, in principle, both parents share the responsibility for child maintenance. The Maintenance Court will assess each parent's income, financial resources, and ability to contribute, and then apportion the maintenance obligation fairly between them, according to the child's needs.

Child maintenance is intended to cover a child's reasonable needs. This typically includes:

• Basic living expenses: Food, clothing, accommodation.
• Education: School fees, uniforms, stationery, extramural activities.
• Healthcare: Medical aid contributions, medical and dental expenses, medication.
• Childcare: Creche or after-school care if applicable.
• Other needs: Depending on circumstances, it can also include reasonable extras for the child's well-being and development.

The primary laws are the Children's Act 38 of 2005, which emphasizes the best interests of the child and parental responsibilities, and the Maintenance Act 99 of 1998, which provides the legal framework for claiming and enforcing maintenance, including for children of cohabiting parents.

No, restricting access is also generally unlawful without a court order.  South African law protects an owner's right to use and possess their property.  Body Corporates cannot take the law into their own hands by preventing access as a levy collection tactic.  Such actions can be challenged in court, leading to legal repercussions for the Body Corporate.
 

No, absolutely not!  It is unlawful for a Body Corporate in South Africa to disconnect essential services like water, electricity, or gas to a unit as a means of forcing levy payment without a court order.  Doing so is considered "spoliation" and is illegal.  The Body Corporate can face legal action and be forced to reconnect services immediately, potentially incurring legal costs and damages.  Always follow lawful collection procedures, not illegal service disconnections.
 

"Arrear levies" are simply overdue and unpaid monthly levy contributions owed by a unit owner to the Body Corporate of their sectional title scheme. Levies are mandatory contributions from all owners to fund the scheme's operational and maintenance costs. When an owner fails to pay their levies by the due date, the unpaid amount becomes an arrear levy, representing a debt owed to the Body Corporate.
 

The owner remains ultimately responsible for levy payments, regardless of tenant rental payments (or non-payment). However, if the owner is renting out their unit, the Body Corporate can utilize Section 39(1)(f) of the CSOS Act to potentially recover arrear levies directly from the tenant's rental income.  This requires a CSOS order directing the tenant to pay rent to the Body Corporate until the arrears are settled. The tenant must be cited as a co-respondent in CSOS applications of this nature.

While owners are legally obligated to pay levies, Body Corporates, acting reasonably, may consider:

• Payment Arrangements: Negotiating a structured payment plan to allow the owner to pay off arrears in installments.
• Understanding Circumstances: While not obligated, understanding the owner's genuine financial hardship can inform a more compassionate and potentially workable approach.
• Consistency and Fairness: Any payment arrangements must be carefully considered to ensure fairness to all owners and should not set a precedent for non-payment. Legal advice should be sought to ensure arrangements are legally sound and enforceable.

However, it's crucial to remember that Body Corporates have a fiduciary duty to all owners to recover outstanding levies and maintain the scheme's financial health.  Long-term non-payment cannot be sustained.

The first critical step is to act promptly and formally.  The Body Corporate, ideally through their managing agent or attorney (like Aucamp Attorneys), should immediately issue a Letter of Demand. This formal letter, sent via registered mail or other trackable methods, clearly informs the owner of the arrear amount, demands immediate payment within a specified timeframe (usually 14 days), and outlines the Body Corporate's intention to pursue legal action if payment is not made.  Prompt action is key to demonstrating seriousness and initiating the recovery process.

Body Corporates in Johannesburg have several legal avenues for arrear levy recovery:

• Magistrate's Court Action: As detailed on this page, this involves a structured court process starting with a Letter of Demand, Summons, Default Judgment (if undefended), Warrant of Execution against movable and potentially immovable property (the unit itself).
• Community Schemes Ombud Service (CSOS): The CSOS offers a dispute resolution process, which is often a more cost-effective and quicker alternative to court for levy disputes. The CSOS can issue orders for payment of arrear levies.
• Adverse Credit Bureau Listing: Legally compliant processes allow Body Corporates to list defaulting owners with credit bureaus, negatively impacting their credit score and future ability to obtain loans, etc. This can be a strong incentive for payment.
• Tenant Intercept (Section 39(1)(f) CSOS Act): If the defaulting owner is renting out their unit, the CSOS can order the tenant to pay rent directly to the Body Corporate to offset the arrear levies.
• Aucamp Attorneys can advise on the most effective legal strategy based on the specific circumstances of each arrear levy case.
   

Prompt collection of arrear levies is crucial for the financial stability and proper functioning of your entire sectional title scheme in Johannesburg.  Unpaid levies directly impact:

• Maintenance and Repairs: Without sufficient levy income, essential maintenance of common areas, gardens, security systems, and buildings is delayed or neglected, leading to deterioration and decreased property values.
• Service Delivery: The Body Corporate may struggle to pay service providers (security, cleaning, gardeners, insurance premiums), compromising the quality of life for all residents.
• Financial Strain: Arrear levies create cash flow problems, potentially depleting reserve funds and making it difficult to meet financial obligations.
• Fairness and Equity: When some owners don't pay, the financial burden unfairly shifts to compliant owners, potentially leading to resentment and further non-compliance.
• Property Values: A scheme with high arrear levies and neglected maintenance becomes less attractive to potential buyers, negatively impacting everyone's property values in Johannesburg.
   

We may require a consultation with our clients before we can proceed as we need to ascertain what our client’s needs are as well as their desired outcomes, and obtain as much information as possible.

The duration varies significantly depending on the complexity of the case. It can range from several months to several years.

While some matters can be resolved within a month, more complex matters may take years. However, we understand the desire to have matters settled as soon as possible and therefore continuously and diligently drive the matter towards completion.

Litigation can be expensive, time-consuming, and can result in unfavorable outcomes.
It can also damage business relationships.   

The process generally includes:

1. Pre-litigation (e.g., sending a letter of demand).   
2. Filing a claim with the court.   
3. Pleadings (exchanging legal documents).   
4. Discovery (exchanging evidence).   
5. Trial.
6. Judgment.

Discovery is the process of exchanging relevant documents and information between the parties to prepare for trial.
 

Action proceedings (summons) are used when there are factual disputes requiring oral evidence.   
Application proceedings (notice of motion) are used when there are no significant factual disputes and the matter can be decided on affidavits.

Pre-litigation actions, such as sending a letter of demand, can sometimes resolve disputes without going to court and can also be used as evidence during the trial process.

Litigation is typically considered when other dispute resolution methods, like negotiation or mediation, have failed. It's also necessary when urgent legal action is required.

Yes, several tax incentives and measures exist to ease the tax burden for small businesses

• Small Business Corporation (SBC) tax: Businesses with a turnover up to R20 million (as of 2013/2014) may qualify for lower tax rates (0% to 28%). Certain conditions apply, such as limits on investment income and personal services rendered.
• Turnover tax Businesses with basic accounting records and a turnover up to R1 million can opt for a simplified turnover tax system. However, tax is payable even if no profit is made.
• Venture Capital Company (VCC) incentive Individuals investing in approved VCCs that then invest in small businesses can receive upfront tax deductions. However, capital gains tax applies when shares are sold.
• Research and Development (R&D) tax incentive This incentive, introduced in 2006, can benefit small firms engaged in R&D activities.

SARS has also implemented other initiatives to simplify tax compliance for small businesses, such as raising the VAT turnover threshold and allowing some businesses to submit VAT returns quarterly instead of bi-monthly.

Yes, you can. But, modern business is complex and so it is best to ask an attorney for advice.

A trust is a legal arrangement where someone (the founder) transfers assets to trustees, who manage those assets for the benefit of others (the beneficiaries).  This arrangement is documented in a Trust Deed.

A simplified overview

• Trust Deed The written document outlining the trust's terms, objectives, and how it should operate.
• Trustees Individuals responsible for managing the trust assets according to the Trust Deed. They have significant powers, similar to those of a company's directors, but must act in the best interests of the beneficiaries and avoid conflicts of interest.
• Beneficiaries The individuals who benefit from the trust assets.
• Registration Trusts are registered under the Trust Property Control Act.
• Legal Personality Generally, a trust does not have a separate legal personality (it's not a separate "person" legally). The trustees act on behalf of the trust.
• Asset Protection Trust property is protected and kept separate from the trustees' personal assets.
• Master of the High Court Oversees trust registration and may require trustees to provide security (usually through insurance) for their performance.
• Limited Disclosure Trusts have limited public disclosure requirements. Audits and annual financial statements are not always mandatory unless the Trust Deed specifies them.

A notary public must draft and attest the Trust Deed, which is then registered with the High Court. The Master of the High Court formally appoints the trustees.  Trustees are generally not personally liable for trust debts unless they've been grossly negligent or committed fraud.

If you're a consumer in South Africa and have a dispute with a business concerning its products or services, this falls under commercial law, specifically the Consumer Protection Act (CPA). The CPA provides the legal framework for protecting your rights as a consumer in these situations, making consumer protection a vital part of commercial law in South Africa.  
Contact Aucamp Attorneys for assistance with consumer disputes.

In South Africa, a business must register for Value-Added Tax (VAT) if its total sales (turnover) exceed R1 million in a 12-month period.  If you anticipate your turnover will exceed this amount when starting a business, you must register immediately.

If your turnover is less than R1 million, VAT registration is optional (voluntary).  However, if your turnover is less than R50,000 per year, you are not allowed to register for VAT.

Voluntary registration can be beneficial if your business purchases a lot of goods or services from suppliers, as you can then claim back the VAT you paid, potentially reducing the amount of VAT you owe to SARS.

Yes, it is possible to enter into an antenuptial contract before marriage, which allows you to exclude certain assets or specify a different marital regime. This contract needs to be signed and registered before the marriage to be legally valid.
 

Yes, it is possible to change your marital regime through a process known as a postnuptial agreement. However, this requires the consent of both spouses and a court application. It is recommended to consult with a legal professional to guide you through the process.

While an antenuptial contract provides a formal legal framework for asset protection, there are other steps you can take to safeguard your assets. This includes maintaining separate financial accounts, having open communication with your spouse, and considering a postnuptial agreement.

No, it's available to all couples in South Africa, unless they choose otherwise.
 

In community of property, both spouses are equally responsible for the debts incurred by either party. This means that the other spouse may be held liable for the debts. It is important to have open communication and financial transparency to prevent excessive debts.

In community of property, both spouses have equal ownership of all assets acquired during the marriage. In the event of a spouse’s death, their share of the assets will form part of their estate and be distributed according to their will or the laws of intestate succession.

It is important to consult with a legal professional for personalized advice based on your specific circumstances.

In South Africa, you are covered by COIDA (Compensation for Occupational Injuries and Diseases Act) if you are employed by a company registered with the Compensation Fund and are injured or contract a disease while performing your job duties; this applies to most employees, including casual workers, domestic workers, and foreign workers, as long as they are working within South Africa. 

The Compensation Fund in South Africa aims to process claims within 120 days of receiving all required information. However, this is a target timeframe, and actual processing times can vary considerably depending on several factors

• Completeness of Documentation  The Compensation Fund requires specific documentation to support a claim.  Delays often occur when information is missing or incomplete.  The claim cannot be processed until all necessary forms and supporting documents are received.
• Severity of the Injury/Illness  More complex cases, particularly those involving serious injuries or disabilities, may require more extensive medical assessments and documentation, which can lengthen the processing time.
• Administrative Processes The internal processes involved in preparing payment documentation can also contribute to variations in processing times.
• Type of Compensation Different types of compensation (medical expenses, temporary disability benefits, permanent disability benefits, or death benefits) may have different processing requirements, which could affect the overall timeline.

In South Africa, mental illness caused by work conditions can be grounds for a COIDA claim.  You'll generally need a psychiatrist's diagnosis, a clear link between your illness and your job (e.g., from a traumatic event or ongoing stress), and the illness must be classified as an "accident" or "occupational disease."  Report it within 12 months.  Proving the link to work can be tough, and stigma can be a barrier. Each case is unique, so legal advice is essential. COIDA recognizes work-related mental illness, but claims can be complex.

While COIDA aims to protect employees, there are specific circumstances where compensation benefits may be denied for the below 

Late Reporting If the accident, injury, or diagnosis of an occupational disease is reported to the employer more than 12 months after the event, compensation benefits may be denied.

• Short Absences from Work  If the employee is off work for three days or less due to the injury, COIDA typically only covers medical expenses; no loss of income benefits are payable.
• Employee Negligence If the accident or injury is a direct result of the employee's own negligence or willful misconduct, compensation may be denied.  However, even in cases of negligence, if the accident results in serious disablement or death, compensation may still be payable.
• Refusal of Medical Treatment  If the employee unreasonably refuses or willfully neglects to undergo recommended medical treatment, their benefits may be affected or denied.

While COIDA provides broad protection for employees, certain categories of workers are excluded from coverage

• Domestic workers employed in private homes.
• Members of the South African National Defence Force.
• Members of the South African Police Service.
• Independent contractors: Workers who operate outside the control of an employer (e.g., genuinely independent subcontractors). However, employees of a subcontractor are covered.
• Workers employed outside South Africa for more than 12 consecutive months without a prior agreement with the Director-General of the Department of Employment and Labour.
• Workers injured or disabled due to their own willful misconduct, unless the injury results in serious disablement or death.

The Commission will investigate collusive tendering amongst firms who submit tenders and this includes and is not limited to agreements amongst competing tenderors to rotate bids, fix prices and engage in cover pricing.

Proactive compliance is key. This includes:

• Developing and implementing a Competition Law Compliance Program tailored to your business.
• Providing regular training to employees on competition law risks.
• Conducting periodic competition law risk assessments and audits.
• Seeking legal advice from Aucamp Attorneys on potentially risky business practices or agreements before implementing them.

You can easily contact Aucamp Attorneys through our website, by phone, or by email to schedule a confidential consultation. We are ready to discuss your specific Competition Law needs and provide expert legal guidance.

You have rights during a Competition Commission investigation, including the right to legal representation, the right to a fair process, and the right to challenge the Commission's findings. Aucamp Attorneys can advise you on your rights and ensure they are protected throughout the investigation process.

Price fixing is an agreement between competitors to artificially inflate, fix, or control prices, rather than allowing prices to be determined by free market competition. It's illegal because it harms consumers by eliminating price competition and can lead to inflated prices and reduced choice.

The Leniency Program is an initiative that encourages companies involved in cartels to come forward and report their illegal conduct to the Competition Commission in exchange for reduced penalties (or even immunity from fines). The "first in" often gets the most leniency. If your company is involved in a cartel, seeking legal advice from Aucamp Attorneys immediately to explore leniency options is crucial.

The Leniency Program is an initiative that encourages companies involved in cartels to come forward and report their illegal conduct to the Competition Commission in exchange for reduced penalties (or even immunity from fines). The "first in" often gets the most leniency. If your company is involved in a cartel, seeking legal advice from Aucamp Attorneys immediately to explore leniency options is crucial.

The Commission has the mandate to investigate all competition concerns as envisaged by the Act. These include restrictive practices, abuse of dominance, exemptions from the application of the Act and mergers and acquisitions.
 

Mergers must be notified to the Competition Commission if they exceed certain financial thresholds related to the merging parties' turnover or asset values. Aucamp Attorneys can assess your specific merger and advise if notification is required based on the latest thresholds and regulations.
 

No, you do not need to be a business owner. As long as the Creditor can prove that the Debtor owes him the monies and did not adhere to the payment plan in question and committed an act of Insolvency, the Creditor can continue with a Compulsory Sequestration Application.

Creditors must lodge their claims with the appointed trustee within the prescribed timeframe.

If the court grants the sequestration order, a trustee is appointed to take control of the debtor's assets, liquidate them, and distribute the proceeds to creditors according to their claims.

Under Section 9(1) of South Africa's Insolvency Act, compulsory sequestration allows creditors to force a debtor's estate into insolvency when debts remain unpaid. This legal process enables creditors to recover owed funds through asset liquidation. Unlike voluntary sequestration, where the debtor applies, compulsory sequestration is initiated by creditors, providing a structured approach to managing unmanageable debt.

Voluntary sequestration is initiated by the debtor, while compulsory sequestration is initiated by the creditor.

No, a travel consent letter is only valid for the specific trip and dates listed in the document. If you need to authorize multiple trips, you will need to create a separate travel consent letter for each trip.
 

It is not a legal requirement to notarize a travel consent letter if you are traveling within South Africa. However, it is recommended that you notarize the letter to avoid any potential issues or complications when crossing borders or boarding a plane.

Yes, a travel consent letter is a legally binding document that gives permission for a minor to travel without one or both parents or legal guardians. It is recognized by border officials, airlines, and other travel authorities as proof of parental consent.
 

It's highly recommended to seek legal advice from attorneys like AUCamp Attorneys who specialize in family law and travel documentation.  They can advise you on the specific documentation required for your situation and assist with obtaining necessary court orders if consent is withheld or custody arrangements are complex.

A travel consent letter should include the full names and contact information of both parents or legal guardians, as well as the child's full name and date of birth. It should also include the dates of travel, the destination, and any other relevant details about the trip. The letter should be signed by both parents or legal guardians and notarized by a licensed notary public.

A Consent to Travel letter is a written document providing permission from a parent or legal guardian for a minor child to travel, especially when one or both parents are not accompanying the child. It includes details of the child, parents, travel arrangements, and a clear statement of consent.
 

A travel consent letter is a legal document that gives permission for a minor to travel without one or both parents or legal guardians. It is often required by border officials, airlines, and other travel authorities to ensure that the child is traveling with the consent of the parents or legal guardians.
 

To notarize a travel consent letter, you will need to find a licensed notary public who is authorized to provide notary services in your area. You will need to bring the completed travel consent letter, valid identification for both parents or legal guardians, and any other necessary documents. The notary public will then witness the signing of the letter and affix their seal or stamp to the document.

If your child is traveling alone or with only one parent or legal guardian, you will need a travel consent letter to ensure that they are allowed to travel. Without this letter, your child may not be allowed to board a plane, cross a border, or enter a foreign country.

It serves several crucial purposes:

• Child Protection: Helps prevent child abduction and trafficking by verifying that travel is authorised by parents.
• Smooth Border Control:  Satisfies requirements of immigration officials, airlines, and border control in South Africa and internationally, reducing delays and potential denial of travel.
• Legal Compliance: Demonstrates adherence to South African and potentially international legal requirements regarding parental consent for minor travel.

Yes, because constructive dismissal is considered a form of unfair dismissal, an employee who is found to have been constructively dismissed is generally eligible to claim unemployment insurance benefits (UIF), provided they meet the other requirements for claiming UIF.   
 

While the employer's intention can be a factor, the focus is more on the impact of their conduct on the employee and whether it made continued employment intolerable for a reasonable person.

Yes, an employee must refer a constructive dismissal dispute to the CCMA within 30 days of the date of their resignation. Failure to do so within this timeframe may result in the claim being rejected, although an application for condonation (late referral) can be made under certain circumstances.   

Employers can defend against a constructive dismissal claim by demonstrating that:

1. The working conditions were not intolerable.
2. They took reasonable steps to address the employee's concerns.
3. The employee did not utilize available internal grievance procedures.   
4. The employee's resignation was due to reasons other than the alleged intolerable conditions.

The burden of proof rests with the employee to prove that constructive dismissal occurred. They need to provide sufficient evidence to convince the CCMA or Labour Court that the working conditions were indeed intolerable due to the employer's conduct and that their resignation was a direct result thereof.   

• Attempt to resolve the issue internally: Before resigning, employees should ideally try to use the company's internal grievance procedures to address the intolerable conditions. Documenting these attempts is crucial.
• Seek legal advice: It's advisable to consult with a labour law attorney to understand their rights and assess the strength of their case.
• Resign clearly stating the reasons: When resigning, the employee should clearly state in their resignation letter that the reason for leaving is the intolerable working conditions created by the employer.
• Gather evidence: Collect any evidence that supports the claim of constructive dismissal, such as emails, letters, witness statements, and records of incidents.   
• Refer the matter to the CCMA: The employee must refer a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 30 days of the date of resignation.   
   

The CPA does not apply to an agreement in the following circumstances:
if the consumer is the State;
* if the consumer is a business, with an annual turnover of more than R2 million, or owning property worth more than R2 million, at time of concluding the agreement;
* if the agreement relates to labour, for example, an employment contract or collective agreement;
* if the agreement is a credit agreement, such as a loan;
* if the agreement was entered outside of South Africa;
* an agreement that is not in the ordinary course of the supplier’s business; or if it is exempted by the CPA.

The Consumer Protection Act (CPA) of South Africa gives consumers several rights regarding refunds, including:

Returning defective or unsafe goods - Consumers can return goods that are defective, damaged, or don't meet safety standards within six months of delivery. They can request a repair, replacement, or refund. If the supplier repairs the goods, the repair must last at least three months. 

Returning unsolicited goods - Consumers can return unsolicited goods at no cost and keep them or return them. The supplier is responsible for the cost of sending the goods back. 

Returning goods not as advertised - Consumers can return goods that don't match the description provided at the point of sale or in advertising. 

Cooling-off period - Consumers can return goods purchased through direct marketing within five business days of receiving them and receive a full refund. 

Refusing delivery - Consumers can inspect goods on delivery and refuse them if they don't meet the type or quality they could reasonably expect.

Consumers have the right to clear and understandable information about goods, services, and transactions. Here's what this means for you:

1. Contracts and Agreements - You can demand contracts and agreements in simple, plain language that is easy to understand.

2. Prices of Goods and Services - Prices must be clearly displayed where consumers can see them.
You can request the unit price of goods or services to avoid hidden costs.
Promotions must specify their duration. If not, the advertised price must be honored.
If an item shows two different prices, you have the right to pay the lower price.

3. Product Labelling and Descriptions - Labels and descriptions must not mislead you about the contents or origin of a product.
Producers must show the country of origin, expiry dates, and whether genetically modified ingredients are included.
Suppliers cannot change or remove trademarks or product labels to mislead consumers.

4. Reconditioned or Grey Market Goods - Suppliers must clearly display if goods have been reconditioned, rebuilt, or remade.
Grey market goods, sold without the approval of the registered trademark owner, must be labeled as such.
Grey market goods are items meant for one country but sold in another, such as products intended for China being sold in South Africa.

5. Sales Records - You are entitled to receipts or invoices for all purchases. These must include:
Supplier's contact details, business name, and VAT registration number.
A description of the goods, the transaction date, unit price, quantity, total cost, and applicable taxes.

6. Information from Intermediaries - Brokers, agents, and other intermediaries must disclose their affiliations and who they represent.

7. Identification of Deliverers and Installers - Deliverers and installers must wear visible name badges or identification.
You have the right to request identification before allowing delivery or installation of goods.
These rights ensure transparency and help protect you as a consumer. If you encounter any issues, you can demand compliance with these standards.

A consumer must lodge a complaint with the supplier, preferably in writing. If the complaint is lodged by telephone, ask for an e-mail address in order to confirm the conversation about the complaint in writing. Normally, a big business has a department that specifically deals with complaints, it is best to follow the procedure prescribed by that department.
Keep records of the date of the complaint, name of the consultant complained to, the reference number of the complaint, and any other relevant details.
If the complaint is not resolved by the supplier within a reasonable time period, the consumer may lodge a complaint, with the relevant ombud, industry ombud, Consumer Goods and Service Ombud, National Consumer Commission, National Consumer Tribunal, an alternative dispute resolution agent, consumer court or civil court; depending on the type of complaint.
A complaint must be lodged within 3 years of it occurring or else a consumer’s right to do so prescribes.

When making a loan application, the contract must be in simple language, available in at least two languages and consumers must receive a copy.
Consumers are entitled to a reason when credit is refused.
All credit providers must assess whether the consumer can afford the loan, and all loans must be recorded on a register so that a consumer will not become over indebted.
Any credit provider that gives credit without considering whether a client can repay the loan may be guilty of reckless lending. There could be severe penalties and the credit provider may even loose the right to recover the debt.
A consumer will not be protected if they did not answer questions honestly and fully in the loan application process and in such cases the credit provider will not be guilty of reckless lending.

As with the National Credit Act, the Consumer Protection Act encourages consumers to first try to resolve the disputes with the company or service provider concerned. If they are not successful, they can lodge a complaint with the National Consumer Commission or with the provincial Consumer Affairs Offices
National Consumer Commission : Tel: 0860 266 786 Fax: 0860 515229
Gauteng : Tel: (011) 355 8117 Fax: (011) 355 3017

No, not all contested divorces go to trial.  While a contested divorce starts with disagreement and often involves legal maneuvering, the majority of contested divorce cases are actually settled before they ever reach a courtroom for a full trial. Couples may reach an agreement through negotiation, mediation, or at the pre-trial conference stage. Even if the initial stages are contentious, many couples find common ground and resolve their differences before a judge has to make a final decision

Contested divorces in South Africa can vary significantly in length, typically taking anywhere from several months to several years to finalize.  The timeline depends on several key factors:

• Complexity of the Case The more issues in dispute (such as asset division, child custody, or spousal maintenance), the longer the process is likely to take.
• Court Scheduling Court backlogs and the availability of court dates can significantly impact the timeline. High Courts, in particular, may have longer waiting periods.
• Negotiation and Settlement Even in contested divorces, many cases are resolved through negotiation and settlement before reaching trial. The willingness of both parties to compromise can shorten the process.
• Evidence Gathering Gathering necessary evidence, which might include financial audits, valuations, or expert witness testimony, can also contribute to the overall timeframe.

Before the trial, the court may require the parties to attend pretrial conferences to explore settlement options and narrow down the issues in dispute. Mediation may also be suggested to resolve disagreements outside of court
 

To prepare for a contested divorce in South Africa, you should consult a family law attorney, gather all relevant documentation regarding your assets, liabilities, and financial records, understand your matrimonial regime, and be prepared to discuss issues like child custody, property division, and spousal maintenance, as a contested divorce involves legal proceedings where a court will decide these disputed matters. 

After the trial, the court issues a final divorce decree that resolves all outstanding matters and legally dissolves the marriage.

A contested divorce in South Africa is a complex process with several distinct stages. It begins with one spouse issuing a summons to the other, initiating the legal proceedings. Following this, both parties exchange formal legal documents called pleadings, which define their positions and the points of contention. The next phase, known as discovery, involves the sharing of relevant documents and information between the parties. A pre-trial conference is then held, often with a judge or magistrate, to attempt to narrow the issues and potentially reach a settlement. If children are involved, a family advocate enquiry may be conducted to assess their best interests. It's also possible that maintenance applications will be necessary during this period. Finally, if no agreement is reached, the case will proceed to trial. Due to the numerous steps and potential complexities, a contested divorce can take many months, and in some cases, even years to resolve.

Yes, usually with the agreement of all parties involved, and often the amendment must be in writing.

A breach of contract occurs when one party fails to fulfill its obligations as specified in the contract without a lawful excuse. (Failure to fulfill a contractual obligation.)
 

It may be voidable.If you can prove duress, you might be able to have the contract declared voidable. This means you can choose to cancel the contract and get your money back. However, it’s important to act quickly, as you might lose your right to void the contract if you wait too long.
 

A period after signing certain contracts during which the consumer can cancel without penalty. However this does not apply to all contracts, thus the importance of having an attorney to review all matters regarding contracts. 

A misrepresentation is a false statement of a material fact made by one party which affects the other party's decision in agreeing to a contract. If the misrepresentation is discovered, the contract can be declared void. Depending on the situation, the adversely impacted party may seek damages.
 

All contracts are agreements, but not all agreements are contracts. A contract is an agreement that is legally binding.

Yes, but specific procedures apply, such as signing before a Notary Public and obtaining an Apostille, or signing at a South African embassy.

Typically, the process takes between 8 to 12 weeks from the date the Offer to Purchase is signed, though this can vary based on factors like bond approval and municipal clearance certificates.

Before a property is transferred, the seller is responsible for obtaining and paying for compliance certificates to confirm the property meets safety and legal standards. Buyers should request these certificates early in the Offer to Purchase and ensure they receive copies before the transfer process is completed.

Common Compliance Certificates Include:

Electrical Certificate
Confirms that the property’s electrical installation complies with safety standards.

Water/Plumbing Certificate
Ensures that the plumbing system is in working order and free from leaks, as per municipal regulations.

Gas Certificate
Verifies that any gas installation meets safety requirements.

Beetle Certificate
Required in certain regions, this confirms that the property is free of beetle infestations (wood-destroying insects).

Electric Fence Certificate
Ensures electric fences comply with legal and safety standards if installed on the property.

For a smooth transfer process, both buyers and sellers must ensure these certificates are obtained and valid before finalizing the sale.
 

Transfer Costs

Calculated on a sliding scale based on the property’s purchase price.
Fees are set by the Law Society.
Transfer Duty

Payable to SARS if the property value or purchase price exceeds R1,000,000.
Transfer duty is calculated on a sliding scale.
Not applicable if the seller is VAT-registered, as VAT will apply instead.
Bond Costs

Applicable when a bond is registered. Costs depend on the bond amount.
The bank charges an initiation fee, stipulated in the Letter of Acceptance.
Occupational Rent

If the buyer occupies the property before registration, they pay occupational rent as stated in the Offer to Purchase.
Levies

For Sectional Title Transfers, a levy clearance certificate fee applies.
Pro-rata monthly levies and any special levies must be settled as determined by the Body Corporate.
Rates Clearance Certificate

The municipality charges a fee for issuing a rates clearance certificate.
Homeowners’ Association Consent

If required by the Title Deed, the Homeowners’ Association will charge a consent fee for the transfer.
Agent’s Commission

Payable from the sale proceeds on transfer.
The Offer to Purchase specifies whether the commission includes or excludes VAT.
Bond Cancellation Penalty

Banks require 90 days’ notice to cancel a bond. Penalty interest applies if canceled earlier, calculated on the outstanding bond amount.
Bond Cancellation Fee

Attorneys appointed by the bank charge a fee to cancel the existing bond, even if fully paid up.
Rates and Services

Municipal rates and services must be paid up to date, including any arrears. Refunds for overpayments will be issued to the seller after transfer.
Compliance Certificates

Sellers must provide compliance certificates where applicable, including:
Electrical, Gas, Beetle, Electric Fence, Plumbing, etc.
Costs for necessary repairs are the seller’s responsibility.
Repairs and Title Deed Issues

Any repairs stipulated in the Offer to Purchase must be completed before transfer.
If the original Title Deed is lost (unbonded property), a certified copy must be obtained from the Deeds Office.
Additional Considerations

Funds may be advanced to settle rates figures, with admin fees deducted from the sale proceeds.
Understanding these costs and requirements ensures a smoother property transfer process. For professional guidance on your transfer, contact us today!

The seller's existing bond must be canceled upon transfer, often coordinated by the conveyancer with the seller's bank.

It's a legally binding document outlining the terms and conditions of the property sale, signed by both buyer and seller.

Conveyancing is the legal process of transferring property ownership from the seller to the buyer, ensuring all legal requirements are met for a valid transaction.

Transfer duty is a tax levied on property transactions above a certain value, payable by the buyer to the South African Revenue Service (SARS).

Possession usually occurs on the date of transfer, but the parties can agree on a different occupation date in the Offer to Purchase.

Usually, the seller appoints the conveyancer, but this can be negotiated between the buyer and seller.

Yes, settlement agreements reached through mediation or negotiation are legally binding contracts. Arbitration awards are also generally enforceable through the courts. 

The best method depends on the specific circumstances of the dispute, including the nature of the disagreement, the relationship between the parties, the desired outcome, and cost considerations. Legal counsel can help make this determination.

Mediation is generally non-binding unless the parties reach a settlement agreement, which is then legally enforceable. Arbitration awards are generally binding and enforceable.  Negotiated agreements are also binding contracts. 

Key requirements often include self-reporting the wrongdoing, cooperation with the NPA, demonstrating public interest in pursuing ADR, and agreeing to implement corrective measures.

If ADR fails to resolve the dispute, the parties may proceed with litigation in court or explore other options.

A mediator acts as a neutral facilitator, helping the parties communicate effectively and explore potential solutions.  They do not impose a decision 
 

We tailor our corporate law services to your unique needs. We can assist with:

• Company Registration and Structuring: Setting up your business correctly from the start.
• Drafting and Reviewing Contracts: Ensuring your agreements are legally robust.
• Corporate Governance Advice and Implementation: Building ethical and compliant corporate structures.
• Mergers and Acquisitions Support: Navigating complex transactions smoothly.
• Shareholder Dispute Resolution: Resolving conflicts efficiently and effectively.
• Compliance Audits and Advice: Keeping your business legally compliant.
• Corporate Litigation and Dispute Resolution: Representing you in legal proceedings.
• And much more.

Getting started is easy. Simply contact us today to schedule a consultation. We'll discuss your specific corporate law needs, answer your questions in detail, and outline how we can assist you in building a legally sound and successful business in South Africa.

Corporate law is broad, encompassing areas like:

• Company Formation and Registration: Choosing the right structure and legally incorporating your business.
• Corporate Governance: Director duties, shareholder rights, board structures, compliance.
• Shareholder Agreements: Defining relationships and responsibilities among owners.
• Commercial Contracts: Drafting, reviewing, and negotiating legally sound agreements.
• Mergers & Acquisitions (M&A): Legal aspects of company mergers, acquisitions, and disposals.
• Corporate Finance: Legal framework for raising capital, issuing shares, and managing finances.
• Insolvency and Business Rescue: Navigating financial distress and restructuring.
• Intellectual Property: Protecting your company's trademarks, patents, and copyrights.
• Corporate Litigation and Dispute Resolution: Handling legal disputes effectively.

AUCAMP Attorneys offers expert services across all these critical areas.

Choosing AUCAMP Attorneys for your corporate law needs means you benefit from:

• Expertise and Experience: Our corporate law team possesses in-depth knowledge of South African corporate legislation and best practices.
• Practical, Business-Focused Advice: We provide pragmatic solutions tailored to your specific business goals, not just theoretical legal advice.
• Proactive Risk Management: We help you identify and mitigate potential legal risks before they escalate.
• Efficient and Cost-Effective Services: We understand business needs and strive for timely and cost-effective legal solutions.
• Client-Centric Approach: We build strong relationships with our clients, providing personalized attention and understanding your unique business.
• Comprehensive Legal Services: We offer a full suite of corporate law services, from formation to dispute resolution.

The primary legislation is the Companies Act 71 of 2008.  Key related laws and regulations also include:

• Close Corporations Act 69 of 1984 (for existing Close Corporations, though no new ones can be formed).
• King IV Report on Corporate Governance: Sets best practices for ethical and effective corporate governance.
• Securities Laws and Regulations: Governed by the Financial Sector Conduct Authority (FSCA) and the Johannesburg Stock Exchange (JSE).
• Labour Law, Tax Law, Competition Law, Consumer Protection Act, and various industry-specific regulations – all of which intersect with corporate operations.

AUCAMP Attorneys possesses in-depth knowledge of all these relevant laws and how they apply to your business.
 

Corporate law, also known as company law, is the set of laws, regulations, and legal principles in South Africa that govern the formation, operation, management, and dissolution of companies and other business entities. It provides the rules of the game for businesses, ensuring they operate legally and ethically. Think of it as the legal DNA of your company. AUCAMP Attorneys provides expert guidance to help you understand and comply with these essential rules.

It's wise to consult a corporate lawyer from AUCAMP Attorneys at various stages, including:

• Starting a New Business: Choosing the right legal structure and incorporation.
• Before Entering into any Significant Contract: To ensure terms are legally sound and protect your interests.
• When Considering Major Transactions: Mergers, acquisitions, investments, restructuring.
• When Facing a Dispute or Potential Litigation: To protect your company's interests and navigate legal processes.
• To Ensure Ongoing Compliance: Proactively review your business practices and stay ahead of regulatory changes.

Whenever you are unsure about a legal aspect of your business operations. It's always better to be proactive than reactive.
 

Corporate law is crucial because it:

• Provides Legal Structure: Determines the legal form your business takes (e.g., Pty Ltd, Ltd), impacting liability, taxation, and governance.
• Ensures Compliance: Helps you navigate complex regulations like the Companies Act, preventing penalties and legal issues.
• Protects Your Business and Stakeholders: Defines rights and responsibilities of directors, shareholders, and other stakeholders, fostering fairness and accountability.
• Facilitates Growth and Transactions: Enables mergers, acquisitions, investments, and other strategic transactions in a legally sound manner.
• Provides Dispute Resolution Mechanisms: Offers frameworks for resolving corporate disputes efficiently.
• Builds Credibility and Trust: Operating within the law enhances your company's reputation and stakeholder confidence.

Ignoring corporate law can lead to significant legal risks, financial penalties, and even business failure. AUCAMP Attorneys helps you proactively manage these risks.

You may qualify for debt review in South Africa if you meet the following criteria

• Over-Indebtedness: You are struggling to meet your debt repayments, have fallen behind, or are at risk of falling behind on your payments.
• Regular Income: You must have a consistent monthly income. Unemployment generally disqualifies you from debt review.
• Importantly, you can qualify for debt review even if you are blacklisted or have a poor credit record.  These factors do not automatically disqualify you.

Under debt review, managing your debt repayments becomes significantly easier.  Instead of juggling multiple payments to various creditors, you'll make just one affordable monthly payment to a Payment Distribution Agency (PDA).  The PDA then handles the distribution of these funds to your creditors according to the agreed-upon repayment plan.

• Affordable Repayment Plan Your debt counsellor will work closely with you to create a budget-friendly repayment plan, carefully considering your income and expenses.  This plan often involves reduced monthly installments and a possible extension of the overall repayment period.
• Creditor Approval Once finalized, the repayment plan is submitted to your creditors for their approval.  Upon agreement, they are legally obligated to cease all debt collection efforts, including calls, letters, and legal action.
• Single Monthly Payment You'll then make your single monthly payment to the PDA.
• Distribution to Creditors The PDA efficiently distributes the funds to your creditors according to the approved repayment plan.  They will deduct a small, regulated fee for their services, which is typically included in your monthly payment.

At Aucamp Attorneys, we guide you through this process, ensuring you understand how payments work and supporting you every step of the way. Contact us today for a consultation.

Every debt review journey is unique, and the timeframe varies depending on individual circumstances. While the average debt review process typically takes between 3 and 5 years, several factors can influence the duration.

• Total Debt- The amount of debt you have accumulated will naturally impact the repayment timeline. Larger debts may require a longer repayment period.
• Affordability- The amount you can realistically afford to repay each month is a key factor. Higher payments will shorten the debt review process.
• Commitment- Consistent adherence to your repayment plan and making any additional payments when possible will accelerate your progress toward becoming debt-free.

At Aucamp Attorneys, we'll work with you to develop a personalized debt repayment plan tailored to your specific situation, keeping you informed and supported throughout the process. Contact us today for a consultation.

Struggling with debt?  Consider your options carefully.  Over-indebtedness often disqualifies you from consolidation loans. Debt review, under the National Credit Act, protects your assets from legal action while you repay debt, unlike consolidation loans.  Our debt review process consolidates payments, reduces repayments and interest, and can clear your credit record.  If over-indebted, debt review is usually the better choice. Contact Aucamp Attorneys for a consultation.

In the majority of debt review cases in South Africa, you will not need to appear in court.  Your appointed debt counsellor or legal firm will typically handle all court proceedings on your behalf.  This simplifies the process and reduces stress for those undergoing debt review.

The only time you would likely need to attend court is if there is a dispute with one or more of your creditors that cannot be resolved through negotiation or other out-of-court methods.  In such a situation, your presence might be required to provide information or clarify specific issues.

Debt collectors are typically persistent in their efforts to recover outstanding debts. Their goal is to collect as much of the owed amount as possible.  Professional debt collectors, especially those working for agencies, utilize various tactics, including payment negotiations, asset location, and, if necessary, legal action.  It's crucial to remember that South African debt collectors must operate within the law and adhere to strict ethical guidelines.

Debt collectors may employ different strategies to encourage payment, such as varied contact times and the use of skip-tracing services to locate debtors who have moved.  Generally, debt collectors will pursue a debt unless the cost of doing so exceeds the potential recovery, or the debt prescribes (becomes legally unenforceable due to age).  If you're dealing with debt collectors, contact Aucamp Attorneys to understand your rights and options.

The debt review process typically begins with a consultation with a registered debt counsellor.  They will thoroughly assess your financial situation, including all your debts, assets, income, and living expenses.  If you have some form of income or a reasonable prospect of gaining employment soon, the debt counsellor may accept your application and begin negotiations with your creditors on your behalf. Contact Aucamp Attorneys today to discuss if debt review is the right option for you.

In South Africa, there's no legally mandated minimum debt amount for handing it over to a collection agency. However, practical considerations and internal business policies usually come into play.

• Commercial Viability: Creditors often assess the cost-effectiveness of pursuing smaller debts. The expense of collection procedures might outweigh the potential recovery for very small sums.
• Internal Policies: Most businesses have internal guidelines that determine when a debt is sent for collection. These policies often consider factors like the debt's age, the debtor's payment history, and the overall cost of recovery.
• Legal Considerations: While there's no minimum debt amount, creditors must always adhere to legal requirements when pursuing debt collection. This includes providing debtors with proper notifications and following due process.                     

Contact Aucamp Attorneys for advice on the legalities of debt collection.        

A default judgment is a court ruling entered against a defendant who has failed to defend a claim brought against them by the plaintiff.  This can happen in several situations, including

• The defendant did not serve and file a notice of intention to defend.
• The defendant's notice of intention to defend was filed late.
• The defendant failed to file a plea (their formal response to the claim).
• The defendant's notice of intention to defend was defective.

For any legal action to proceed, the plaintiff must establish

• Locus standi The legal right to initiate the action.
• Cause of action A valid legal claim.
• Jurisdiction The court must have jurisdiction over the defendant, usually based on where the defendant resides or has consented to jurisdiction.

Contact Aucamp Attorneys to discuss the specifics of default judgments and how they might apply to your situation.

If you have no income, debt review might not be immediately feasible, as it requires some funds to work with. However, there are still options to explore. A debt counsellor can advise you on the best course of action, which may include:

• Payment Holiday You can try to arrange a temporary pause on debt repayments until you secure employment. This can provide valuable time to find a job.
• Selling Assets Consider liquidating any assets you have to pay down a portion of your debt.
• Proactive communication is key when you're unemployed and facing debt. Contact your debt counsellor and creditors to explain your situation. Many creditors have hardship programs designed to assist individuals in these circumstances.  It's also essential to reassess your budget and reduce expenses wherever possible.  

Contact Aucamp Attorneys for guidance on managing debt during unemployment.

The timing of legal action depends on the terms of the credit agreement and relevant South African law.  Generally, if a debtor defaults on a credit agreement and remains in default for more than 20 business days, the creditor must provide written notice of the default before initiating legal proceedings. This notice must give the debtor 10 business days to either:

• Bring the arrears up to date;
• Make a repayment arrangement; or
• Refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court, or ombud with jurisdiction to resolve any dispute.

If the debtor fails to respond to the creditor's proposals or rejects them within the 10-day period, the creditor may then proceed with legal action.

In South Africa, debts generally prescribe after three years.  Prescription means the debt is legally extinguished due to the passage of time. However, there are exceptions to this rule, and certain circumstances can interrupt or delay prescription.  Because of these complexities, it's always best to consult with an attorney at Aucamp Attorneys to determine the specific prescription status of your debt.

If you’re under debt review and need a loan, it’s not possible to get approved for one as this is prohibited in accordance with the National Credit Act. This is not to make life more difficult for you, but to help you regain control of your finances. 
If you are able to continue accumulating credit and taking loans during the debt review process, your debt will unfortunately spiral out of control, and you won’t be able to make the committed repayments. 

The period varies according to how quickly you can pay off all your debts. The process can last for just a few months, or up to 60 months. Alternatively, if you’re no longer over-indebted and can resume normal repayments, we can begin the debt review removal process for you by applying for an order to rescind your debt review status. 
It’s important to note that debt counselling is not the same as blacklisting. Any record of you being under debt review is removed from your credit record once you’ve completed the process successfully. 

Debt Review offers significant advantages, including:

• Legal Protection: Immediately protects you from legal action, harassment, and asset repossession by creditors once you enter the process.
• Reduced Monthly Installments: Your Debt Counsellor negotiates with creditors to reduce your monthly repayments to an affordable amount.
• Lower Interest Rates: We strive to negotiate lower interest rates and fees on your debts.
• Debt Consolidation: All your debts are consolidated into a single, manageable monthly payment.
• Structured Repayment Plan: You receive a clear, legally binding repayment plan to become debt-free.
• Peace of Mind: Reduces stress and anxiety associated with overwhelming debt.
• Credit Record Clearance: Once you complete your repayment plan, we assist with clearing the Debt Review listing from your credit record.
• Asset Protection: Debt Review can help protect your assets, such as your home and car, from being repossessed, as long as you adhere to the Court-Ordered repayment plan.
   

It's important to be aware of the potential considerations:

• No New Credit: You cannot apply for new credit while under Debt Review until you receive a Clearance Certificate.
• Debt Review Listing: You will be listed as under Debt Review at Credit Bureaus (though this is removed upon completion).
• Fees: Debt Counselling and Debt Review involve legally regulated fees (which we will fully explain upfront).
• Longer Repayment Period (Potentially): While monthly payments are lower, it may take longer to repay your debts overall.
• Commitment Required: Success requires commitment to the repayment plan and open communication with your Debt Counsellor at Aucamp

Anyone can apply for debt review, but to be accepted you need to meet the following criteria: 

• You must be a South African citizen between the ages of 18 and 65 with a valid South African ID. 
• You must be over-indebted. That means you’re not able to cover your essential living expenses and monthly debt repayments from your income. 
• You must be employed and able to make monthly repayments while under debt review. 
   

Anyone can apply for debt review, but to be accepted you need to meet the following criteria: 

• You must be a South African citizen between the ages of 18 and 65 with a valid South African ID. 
• You must be over-indebted. That means you’re not able to cover your essential living expenses and monthly debt repayments from your income. 
• You must be employed and able to make monthly repayments while under debt review. 
   

You may be eligible for Debt Review in South Africa if you are:

• Over-indebted: Meaning you are struggling to meet your monthly debt obligations and your expenses exceed your income.
• Employed or have a regular income: You need to demonstrate the ability to make consistent reduced payments under a Debt Review plan.
• A South African citizen or legal resident.

An Executor is responsible for managing a deceased person's estate.  Their key duties include

• Gathering all of the deceased's assets.
• Paying off any outstanding debts and liabilities.
• Distributing any specific gifts or legacies outlined in the will.
• Distributing the remaining estate assets to the heirs, as directed by the deceased's will or, if no will exists, according to the Intestate Succession Act.

Deceased estate administration is the legal process of managing and distributing the assets of someone who has passed away.  It involves a series of steps, from identifying and valuing the deceased's property and settling debts, to ultimately distributing the remaining assets to the beneficiaries.  Because this process can be complex and time-consuming, often requiring legal and financial expertise, Aucamp Attorneys offers deceased estate administration services to guide you through each step and ensure the estate is settled correctly and efficiently, minimizing potential delays and costs.

The key difference between an executor and an administrator lies in how they are appointed and the source of their authority:

• Executor An executor is named in the deceased person's will. They are chosen by the person who made the will to carry out their wishes after they die. Their authority comes from the will itself.   
• Administrator An administrator is appointed by the court. This happens when someone dies without a will (intestate) or if the will doesn't name an executor, or the named executor is unwilling or unable to serve. The administrator's authority comes from the court's appointment.

Navigating deceased estate administration can be complex and stressful.  Using an attorney offers key advantages: legal expertise, protection of beneficiary interests, minimized delays and costs, handling of disputes and litigation, tax guidance, and reduced stress. While not legally required, hiring an attorney is a wise investment for a smoother, more efficient process and invaluable peace of mind.

Unmarried partners are not automatically entitled to inherit. They must prove a reciprocal duty of support to claim any inheritance unless explicitly included in a will.

 If you die without a valid will, your estate will be distributed according to the Intestate Succession Act. This means your surviving spouse, children, parents, or siblings will inherit based on a set formula.

An outdated will can lead to unintended consequences, such as an ex-spouse inheriting after a divorce if the will isn’t updated. If the deceased dies more than three months after a divorce without revising their will, the ex-spouse may still inherit.

If both parents are deceased, a will can nominate a guardian for minor children. Without a will, the State determines guardianship, potentially placing children with unfamiliar or unsuitable individuals. Inheritance for minors is managed by the Guardians’ Fund, unless a trust is specified in a will.

If there are no relatives, your estate will go to the State and be held in the Guardians’ Fund. If unclaimed within 30 years, the funds are forfeited to the State.

Without a will, the Master of the High Court appoints the executor, often based on nominations from the deceased’s heirs. This may cause delays, additional costs, and family frustration.

Expert Guidance A lawyer ensures your will complies with legal standards and helps structure your estate to minimize taxes and other costs, such as estate duty and Capital Gains Tax.
Avoid Delays An invalid or poorly drafted will can cause delays, leading to unnecessary expenses and disputes. Lawyers help ensure everything is legally sound and efficient.
Keep Your Will Updated Life events such as marriage, divorce, or the birth of children require updates to your will. A lawyer can remind you to review and amend it as needed.
Manage Family Dynamics Lawyers can navigate complex family situations, reducing potential conflicts and ensuring your wishes are honored.
Peace of Mind With professional legal support, your estate will be handled smoothly, giving your loved ones security and minimizing stress during a difficult time.

Generally, legal representation is not automatically allowed in internal disciplinary hearings. Representation is usually by a fellow employee or a union representative. Legal representation may be allowed in very complex cases, but this is at the employers discretion.   
 

Key principles include:

• Providing the employee with clear and timely notice of the allegations.
• Giving the employee a fair opportunity to present their defense.
• Ensuring the hearing is conducted by an impartial chairperson.
• Allowing the employee to be represented by a colleague or union representative.
• Providing access to the evidence being used against them.
   

Verbal warnings are usually valid for 3 months.   
Written warnings are usually valid for 6 months.

A disciplinary hearing is a formal process used by employers to address allegations of employee misconduct. It becomes necessary when an employee's actions are deemed serious enough to potentially warrant disciplinary action, including warnings or dismissal.   

Progressive discipline involves escalating disciplinary measures for repeated or increasingly serious offenses. It typically starts with verbal warnings, progresses to written warnings, and may ultimately lead to dismissal. However, for serious misconduct, immediate dismissal may be justified.   
 

Accurate record-keeping, including detailed minutes of the hearing, is crucial for legal compliance. It provides evidence that the process was fair and followed due process.

Employees have rights to:

1. Receive adequate notice.
2. Be represented.
3. A fair hearing.
4. Call witnesses.
5. Cross-examine witnesses.
6. Receive written reasons for the outcome.
    

The LRA, along with the Code of Good Practice on Dismissal, provides the legal framework for disciplinary procedures in South Africa. It sets out the standards for fair labor practices and protects the rights of both employers and employees.   

Aucamp Attorneys provides comprehensive services for Conciliation and Adjudication:

•  Legal Advice and Strategy:  Advising you on whether Conciliation or Adjudication is appropriate for your dispute and developing the best strategy.
•  Representation in Conciliation:  Preparing for and representing you during conciliation proceedings, aiming for a favourable settlement.
•  Representation in Adjudication (Arbitration):  Preparing and presenting your case in Adjudication/Arbitration proceedings, including evidence gathering, legal arguments, and representation at hearings.
•  Drafting and Reviewing Dispute Resolution Clauses:  Ensuring your contracts contain effective and appropriate dispute resolution clauses.
•  Enforcement of Settlement Agreements and Arbitration Awards:  Assisting with legal processes to enforce settlement agreements reached in conciliation or binding awards from adjudication.

Conciliation and Adjudication (Arbitration) are forms of Alternative Dispute Resolution (ADR) offering key advantages over court litigation in South Africa:

•  Speed: ADR methods are typically much faster than court proceedings, which can be lengthy and delayed.
•  Cost: ADR is generally more cost-effective than litigation, reducing legal expenses and court fees.
•  Confidentiality: ADR processes are usually private, while court proceedings are public records.
•  Expertise: In Adjudication, you can often choose an Adjudicator with specialist knowledge in the subject of the dispute.
•  Flexibility: ADR processes can be more flexible and tailored to the specific needs of the dispute and the parties involved.

To defend yourself, prepare a written submission outlining your arguments, supported by comprehensive documentation and evidence. Familiarize yourself with the relevant legal provisions, and consider obtaining legal advice to ensure your defense is robust and compliant with CSOS procedures.

The process for selecting an Adjudicator/Arbitrator can vary:

•  Agreement of Parties: Parties often agree on a specific individual or a method of selection in their contract (e.g., nominating bodies like professional associations).
•  Appointment by Institution:  For formal arbitrations, institutions like the Arbitration Foundation of Southern Africa (AFSA) can appoint arbitrators.
•  Court Appointment (in limited cases): In certain situations, if parties cannot agree, a court may be requested to appoint an arbitrator.

 Aucamp Attorneys can assist in advising on and managing the process of selecting a suitable and qualified Adjudicator/Arbitrator.
 

Aucamp Attorneys offers expertise in Dispute Resolution across a wide range of areas, including:

•  Commercial Disputes
•  Construction Disputes
•  Labour Disputes
•  Property Disputes
•  Contract Disputes
•  General Civil Disputes

Yes, if parties reach a settlement agreement during conciliation and sign it, that agreement becomes legally binding and enforceable in South Africa.

Yes, an Award issued by an Adjudicator (Arbitrator) in a properly conducted arbitration process is legally binding and enforceable in South Africa, much like a court judgment. Enforcement can be sought through the courts if necessary. Appeals against arbitration awards are generally limited to procedural irregularities or misconduct by the arbitrator, not typically on the merits of the decision itself.

In many labour disputes under the LRA, conciliation is a compulsory first step before arbitration or Labour Court action can be pursued. In other types of disputes (commercial, community, etc.), conciliation is usually voluntary, meaning parties agree to attempt it.

Adjudication (often termed Arbitration in South Africa) is a more formal dispute resolution process where a neutral third party – the Adjudicator (or Arbitrator) – hears evidence and legal arguments from both sides and then makes a binding decision to resolve the dispute. This decision is legally enforceable. Adjudication is frequently used in commercial and construction disputes for quicker and more definitive outcomes than court litigation.
 

Conciliation is a voluntary process where a neutral third party – the Conciliator – helps disputing parties in South Africa to negotiate and reach their own settlement agreement. The Conciliator facilitates discussions, explores options, and assists in finding common ground, but does not impose a decision. It is commonly used and often mandated in labour disputes in South Africa.
 

Dispute Resolution (DR) refers to a range of methods used to resolve disagreements outside of traditional court litigation. In South Africa, DR is a valuable alternative, offering quicker, more cost-effective, and often more amicable ways to settle disputes, particularly through methods like Conciliation and Adjudication (Arbitration).

The main difference lies in the outcome and the role of the neutral third party:

1. Conciliation: Aims for a voluntary settlement reached by the parties themselves, facilitated by the Conciliator. The Conciliator does not make a decision.
2. Adjudication: Results in a binding decision (Award) made by the Adjudicator, imposed on the parties after hearing their cases.

Adjudication (Arbitration) is commonly used in:

•  Construction Disputes:  Standard construction contracts in South Africa often include arbitration clauses to resolve disputes efficiently and with industry expertise.
•  Commercial Contracts:  Many commercial agreements include arbitration clauses as a preferred method for resolving potential future disputes outside of court.
•  Labour Disputes (after Conciliation): If conciliation fails to resolve certain labour disputes, arbitration may be the next step, especially for "interest" disputes or in certain sectors.
•  Other Commercial Matters:  Suitable for various commercial disputes where parties desire a binding decision, but want to avoid lengthy court litigation.

Conciliation is widely used and often legally mandated in South Africa, particularly in:

• Labour Disputes:  The Labour Relations Act (LRA) often requires conciliation as a first step for unfair dismissal, unfair labour practice, and certain other employment-related disputes referred to bodies like the CCMA (Commission for Conciliation, Mediation and Arbitration).
• Community Disputes: Sometimes used in community conflicts or disputes involving community organizations.
• Commercial Matters: Parties may voluntarily agree to conciliation in commercial disputes before more formal processes.

Yes, CSOS decisions are binding. In cases of non-compliance, the CSOS may seek enforcement through the traditional court system, ensuring that its decisions have legal weight.
 

Yes, you can have an attorney represent you in matters before CSOS. While the process is designed to be accessible to individuals representing themselves, legal representation can be particularly beneficial in complex disputes.

Decisions are made following a fair and structured hearing process that includes mediation, conciliation, and, if necessary, formal adjudication. The CSOS issues a written decision based on the evidence presented and in accordance with the applicable statutory and constitutional provisions.

Disputes before the CSOS are legal conflicts arising within community schemes that are resolved through the procedures established by the Community Schemes Ombud Service Act 9 of 2011 citeCSOSA2011. These disputes typically involve issues related to management, levies, maintenance, and the interpretation of scheme rules.
 

Timelines can vary depending on the complexity of the dispute and the caseload of the CSOS. Generally, the process is designed to be quicker than traditional litigation, though delays may occur due to administrative backlogs or evidentiary challenges.
 

If you have been summoned by CSOS, review the summons carefully, gather all relevant documents and evidence, and consider seeking clarification from the CSOS office. Early legal consultation is advisable to understand your rights and to prepare an effective response.

You should collect all pertinent records, including scheme rules, financial statements, minutes of meetings, correspondence, and any previous decisions or communications related to the dispute. These documents form the foundation of your case.

If you disagree with a CSOS decision, you may have the option to seek a review or appeal on procedural grounds, particularly if there has been a failure to adhere to fair hearing principles. Consulting with a legal expert like Aucamp Attorneys is advisable to explore these avenues.

Generally, any member or stakeholder of a community scheme—including homeowners, tenants, and managing agents—can bring a dispute before the CSOS if they believe that their rights under the scheme have been violated or that the scheme is being mismanaged

Many couples choose divorce mediation because it offers several advantages over traditional divorce litigation:

• Cost-Effective – Mediation is generally more affordable than litigation.
• Faster Process – It takes less time to reach a resolution.
• More Control – Couples have more say in the decisions, rather than leaving it to a judge.
• Better Communication – Mediation allows couples to communicate directly, avoiding the risk of miscommunication through separate lawyers.
• Promotes Cooperation – It encourages a more collaborative approach.
• Better Decision-Making – Couples can make decisions that work best for their family.
• Emotionally Healthier – Mediation reduces stress and is gentler on both spouses and their children.

Yes, you can divorce a spouse who is incarcerated. However, if the divorce is contested, you may face challenges in serving legal documents to your spouse.

No. Your spouse cannot stop you from getting divorced. You cannot be forced to stay in a marriage which you no longer wish to be a part of. It is your right to get divorced, should you wish to do so.  
 

To obtain a copy of your decree, please contact the Registrar of the High Court, where the matter was dealt with. Follow this link for the contact details for the High Courts on the Office of the Chief Justice's website: www.judiciary.org.za/index.php/contact-us/regional-court
 

In South Africa, child custody is determined by what is in the best interest of the child. Factors include the child’s age, the parenting ability of each spouse, the child’s relationship with each parent, and the child's emotional and psychological needs. The court may award sole or joint custody.

Child maintenance refers to the financial support provided by the non-custodial parent to assist with the child’s living and educational expenses. The amount is based on factors like the income of both parents, the needs of the child, and the standard of living prior to the divorce.

Uncontested divorce - Both spouses agree on all terms of the divorce, including asset division, maintenance, and child custody. It’s quicker, cheaper, and less stressful.
Contested divorce - One or both spouses cannot agree on key issues, and the matter is decided by a court. This process can be lengthy and expensive.

The first step is filing for divorce at your local court. We’ll help you prepare the paperwork and guide you through the process.
 

No. The "clean break" principle allows for the pension interest to be paid out to your ex-spouse at the time of the divorce, either as a lump sum or transferred to their own retirement fund.
 

Simplified Answer: Absolutely. Pension and divorce law is complex. A lawyer specializing in divorce and pension funds can protect your rights and ensure a fair settlement. Getting the court order and settlement agreement worded correctly is essential. 

No, a section 7(8) order cannot be granted if: The divorce action is in respect of a marriage out of community of property entered into on or after 1 November 1984 and in terms of which the ante-nuptial contract excludes community of property, community of profit and loss and the accrual system; or The member's service with their employer ended before the divorce order was granted (because the member will no longer have a pension interest to award as at date of divorce).
 

The portion of your pension that you accumulated during your marriage is usually considered part of your joint estate (if married in community of property or with accrual) and is subject to division. Your ex-spouse may be entitled to a share of this amount.   
  
 

Your prenuptial agreement can significantly impact how your pension is divided. It's crucial to review it with your attorney.

It's the value of your pension benefit that you earned during your marriage. It's not necessarily the total current value of your pension. It has a specific legal definition.

The fund(s) to which the member belonged on the date of divorce must be named or identifiable in the order The portion of the pension interest awarded to the non-member spouse must be clear; (either expressed as a percentage or a Rand value of pension interest, not exceeding 100%) It must be clear that a portion of pension interest is being awarded
The relevant fund must be expressly ordered to:
• Pay over the awarded portion of your pension interest to your ex-spouse or a fund of your ex-spouse’s choice; and
• Endorse its records accordingly.

Non-member spouses have to pay their own taxes on the pension interest payments unless they're transferring them to a retirement fund in which case, it can be transferred tax free.
 

No case is too complicated to be settled using mediation. Frequently the parties in mediation consult with outside experts such as accountants, appraisers, financial planners and attorneys during the process.
 

No, a divorce mediator does not act as a judge. A divorce mediator is a neutral third party who helps both parties agree on issues related to their divorce. The mediator’s role is not to decide the case’s outcome but to facilitate communication and help both parties agree amicably. 
 

The couple and the mediator meet in a series of mediation sessions, usually 1 – 2 hours long.

• 1st meeting: The  process is explained and the couple can decide if mediation is for them.  Between the first and later sessions the couple gathers all relevant financial data, or if necessary, the opinions of experts such as appraisers or accountants, with this material treated with the same care and concern as would be the case in the adversarial process.
• Further Meetings: Discussions revolve around how to compromise on the various issues in order to meet the needs of both parties. The mediator assists by providing information about the court system and common ways divorce issues are resolved.
• The Agreement: When an agreement has been reached on all issues, the mediator drafts the agreement for review by each of the parties and their attorneys, if any.

Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent legal advice during the mediation process, and to have their lawyer review the agreement before it is signed. Even when the mediator is a lawyer, he/she cannot give either party legal advice.
 

Although many mediating couples are amicable and work well in mediation, there are also many couples who are very emotional about the divorce and don’t think they can negotiate face to face. Part of every qualified mediator’s training is in assisting couples who have high emotions but who still would like to work things out peacefully. People do calm down and become effective mediation participants when they see that the process can work without adding to the high emotional and financial cost of divorce.
 

Life circumstances can change after a divorce. If both parties mutually agree to modify the terms of their settlement agreement, a court will generally approve the amendment. Aspects concerning child maintenance and other orders related to children can be updated as stipulated in Section 8 of the Divorce Act. However, amendments to the division of assets typically require a joint application from both parties. Once the settlement agreement has been made a court order, changes to asset division are generally not permitted unless there is evidence of fraud.
 

While it's not legally mandatory, it is highly advisable to consult with an experienced family law attorney. A lawyer can ensure your rights are protected, the agreement complies with all legal requirements, and that you understand the implications of each clause. They can also assist with negotiations and drafting the agreement.  
 

The primary consideration is the best interests of the child. The agreement will outline who has primary care, the visitation schedule for the other parent, and how important decisions about the child's life will be made (co-parenting).   
 

Child maintenance is based on the needs of the child and the respective financial means of both parents. While there are no strict formulas, the agreement should specify the amount each parent will contribute and cover essential expenses like education, healthcare, and living costs.   

The division of assets depends on your marital regime (e.g., in community of property, out of community of property with or without accrual). The agreement should clearly outline how all assets and debts will be divided, which can be agreed upon by the spouses.

No, in South Africa, a divorce settlement agreement must be in writing and signed by both parties to be legally binding and presented to the court for incorporation into the divorce decree.

A thoughtfully prepared divorce settlement agreement offers numerous benefits, paving the way for a smoother transition into your post-divorce life:

• Certainty: Provides clarity and predictability, reducing the likelihood of future disputes.
• Control: Empowers you to have more control over the outcome of your divorce, rather than leaving decisions solely to the court.
• Efficiency: Can significantly expedite the divorce process, saving time and legal costs.
• Reduced Stress: Minimizes emotional strain by facilitating a more amicable resolution.

A divorce settlement agreement is a legally binding written contract between divorcing spouses that outlines the agreed-upon terms and conditions of their divorce. It covers key aspects like the division of assets, child custody and maintenance, spousal maintenance, and other relevant matters.   

Yes, even in an uncontested divorce where you agree on all terms, a written settlement agreement is crucial. It formalizes your agreement and provides a clear record of your decisions, which will then be made an order of court.   

Failure to adhere to the terms of a divorce settlement agreement can have serious legal consequences. The aggrieved party has the right to seek legal remedies, including approaching the court for intervention to enforce the agreement. This underscores the critical importance of creating a comprehensive and realistic agreement from the outset.

It provides clarity and certainty about the terms of your divorce, helps avoid future disputes, allows for tailored solutions specific to your situation, offers legal protection as a court order, can save time and costs compared to lengthy court battles, and can reduce emotional stress by facilitating a more amicable resolution. 
 

It's highly recommended. The substituted service application and divorce process are complex and require legal expertise.

Yes, divorce is still possible even if your spouse is missing. South African law provides specific legal procedures to address this situation, primarily through substituted service and edictal citation. These processes allow you to proceed with divorce proceedings even when you cannot personally serve a divorce summons on your spouse because their whereabouts are unknown

The court will consider the marital regime and any existing agreements when dividing assets. The court can make orders regarding the division of assets, even in the absence of the missing spouse.   

If your spouse doesn't respond after being served through the authorized method, the court can grant a default divorce order.

If your spouse doesn't respond after being served through the authorized method, the court can grant a default divorce order.

"Reasonable efforts" are comprehensive and documented attempts to find your spouse.  This typically includes:

• Checking your spouse’s last known address and interviewing current residents/neighbors.
• Contacting family members, friends, and former colleagues.
• Inquiring at their last known workplace.
• Conducting thorough online searches (social media, search engines).
• Often engaging a professional tracing agent to conduct a formal search.

You must provide the court with detailed evidence of all these efforts in an affidavit.  Simply stating you "don't know where they are" is insufficient.

Yes, you absolutely can. South African courts can have jurisdiction to grant a divorce even if your spouse lives in another country, provided certain conditions are met.  These conditions usually relate to your or your spouse's domicile or residency in South Africa.  Aucamp Attorneys can assess your specific situation and confirm if South African courts have jurisdiction in your case.

Serving divorce papers internationally requires following specific legal protocols to ensure it is legally valid.  Service can be achieved through:

1.Registered Mail or Courier In some countries, this is permissible for legal document service.
2.The Hague Convention For countries that are signatories, this treaty provides a standardized method for international service through designated central authorities.
3.Diplomatic Channels Utilizing embassies or consulates as a last resort if other methods are not applicable.

Aucamp Attorneys has experience in arranging international service of documents and will ensure it is done correctly to uphold the validity of your divorce proceedings.

The process begins with consulting an experienced divorce attorney like Aucamp Attorneys. We will assist you with:

1.  Establishing Jurisdiction: Confirming South African courts are the correct forum for your divorce.
2.  Preparing Legal Documents: Drafting the necessary divorce summons and application.
3.  Serving the Summons Internationally:  Arranging for the divorce summons to be legally served on your spouse in their country of residence, ensuring compliance with international service regulations (like the Hague Convention).
4.  Managing the Divorce Process: Guiding you through all stages of the divorce, including mediation, court appearances (if necessary), and finalization of the divorce decree.
 

The grounds for divorce are the same whether your spouse is in South Africa or abroad.  In South Africa, divorce is based on:

1. Irretrievable breakdown of marriage:This is the most common ground, meaning the marriage has broken down to the point where there is no reasonable prospect of reconciliation.
2. Mental illness or continuous unconsciousness: In specific, legally defined circumstances.

The process of proving these grounds is generally the same regardless of your spouse's location.
 

International divorce often involves dividing assets located in multiple jurisdictions.  This can be complex and requires careful planning and legal expertise.  Aucamp Attorneys can assist with:

• Identifying and Valuing International Assets Ensuring all assets, wherever located, are properly accounted for.
• Navigating Foreign Property Laws  Understanding how laws in other countries may affect asset division.
• Seeking Expert Financial and Legal Advice Collaborating with financial advisors and, if necessary, legal professionals in other countries to ensure equitable asset division.
• Enforcing South African Divorce Orders Internationally  Exploring mechanisms for ensuring a South African divorce order regarding asset division is recognized and enforceable in other countries where assets are located.
   

Not necessarily.  It depends on whether the divorce is contested or uncontested, and your spouse's willingness to cooperate.

• Uncontested Divorce:If you and your spouse agree on all divorce terms, the process can often be finalized without your spouse needing to travel to South Africa.  They may be able to sign documents remotely and be represented by an attorney in South Africa if needed.
• Contested Divorce If there are disputes (e.g., asset division, child custody), court appearances may be necessary.  However, even in contested cases, with proper legal representation, your spouse's physical presence in South Africa for all hearings may not always be required.

Aucamp Attorneys will advise you on the best approach based on your specific circumstances and whether your spouse is likely to contest the divorce.

In South Africa, dog bite claims are subject to a time limit known as the prescription period. Generally, you have three years from the date of the incident to file a claim. It’s crucial to initiate the legal process promptly to protect your rights.
 

Claims can be brought against the owner of the animal:

• As a result of bodily injuries, which will include the costs of past and future medical expenses, the past and future loss of earnings/salary and pain, suffering and disfigurement (General Damages);
• Claims for loss of support and/or funeral expenses where a breadwinner passed away due to the injuries sustained.

As a dog owner, you may feel like you and your dog are being unjustly treated. In these instances, you could attempt several defences when facing a dog bite claim, such as arguing that:

• The victim provoked the dog.
• The victim was trespassing on your property.
• The dog was protecting you from a perceived threat.
   

The owner of a dog that has inflicted harm on a third party may avoid criminal liability by raising the defence of private defence (self-defence). While the owner of a vicious dog has a legal duty to control it, they may be justified in setting it upon a thief on their premises. The owner of the dog would be responsible but not liable for the conduct of their dog.

The owner of the dog which has inflicted harm on a third party may also avoid delictual liability in actio de pauperie in the following circumstances:

• Where the injured party was in a place where they were not entitled to be;
• Where the victim or a third party or another animal provoked the attack by goading or provoking the animal; and 
• Where a third party was in control of the animal and failed to prevent the animal from harming the victim.

The criminal liability that a dog owner (or the owner of any other animal) faces when their dog bites another person is governed by statute, specifically the Animal Matters Amendment Act, 42 of 1993. Section 1(1) states:

“Any person as a result of whose negligence an animal causes injury to another person, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.”

Yes, the Domestic Violence Act protects individuals in various domestic relationships, including those who live together, are parents of a child, or are in dating or customary relationships. Marriage is not a requirement.

Aucamp Attorneys can provide crucial legal assistance by:

• Guiding you through the process of applying for a Protection Order.
• Representing you in divorce proceedings where domestic violence is a factor, ensuring your safety and rights are prioritized.
• Assisting with child custody arrangements that safeguard the well-being of your children.
• Providing expert legal advice on your rights and the best course of action.
• Navigating the complexities of the Domestic Violence Act and related legislation. 

Evidence of domestic violence can significantly influence divorce proceedings, particularly regarding:

• Spousal Maintenance: Courts may be less likely to award maintenance to an abusive spouse and may award more to the victim.
• Division of Assets: The court may consider the abuse when determining a fair division of the marital estate.
• Child Custody: The best interests of the child are paramount, and evidence of abuse can lead to supervised visitation, restricted access, or even the denial of contact for the abusive parent. 

The safety and well-being of children are paramount in South African law. Aucamp Attorneys can assist you in seeking appropriate child custody arrangements, including supervised visitation or restricted contact, to protect your children from harm. We will advocate for their best interests in all legal proceedings.

If you are facing accusations of domestic violence, it is essential to seek legal representation immediately. Aucamp Attorneys can help you understand the allegations, protect your rights, and build a strong defense.

If you are in immediate danger, your priority should be your safety. Contact the South African Police Service (SAPS) immediately by calling 10111. You can also seek refuge at a shelter for abused women and children.

Yes, any adult person has a legal obligation to report to a social worker or the police if they have knowledge, belief, or suspicion of an act of domestic violence against a child, a person with a disability, or an older person.

The costs can vary depending on the complexity of your case. We offer consultations to discuss your specific situation and provide you with a clear breakdown of potential legal fees. We are committed to providing transparent and ethical legal services.

Your safety is paramount. If you are in immediate danger, contact the police. It is also crucial to document any incidents of abuse with details like dates, times, descriptions, photos, and any medical or police reports. Seeking legal advice from experienced attorneys like Aucamp Attorneys as soon as possible is highly recommended to understand your rights and options.

The Amendment Act brought significant changes, including an expanded definition of domestic violence to include spiritual abuse, elder abuse, coercive and controlling behaviour, and exposing children to domestic violence. It also allows for electronic applications for Protection Orders, making the process more accessible.

Violating a Protection Order is a criminal offense in South Africa. The abuser can be arrested and face criminal charges. It's crucial to report any violation to the police immediately.

A Protection Order is a legal document issued by the court to protect you from further abuse. Aucamp Attorneys can assist you with the application process by:

• Helping you gather the necessary evidence.
• Drafting the required affidavits and court documents. 
• Representing you in court hearings to ensure your application is presented effectively

Supporting evidence can include:

• Medical records of injuries.
• Photographs of injuries or property damage.
• Police reports or case numbers.
• Witness statements.
• Text messages, emails, or other forms of communication.
• Any previous Protection Orders or related legal documents.

In South Africa, domestic violence is broadly defined by the Domestic Violence Act 116 of 1998 (as amended) and includes various forms of abuse such as physical, sexual, emotional, verbal, psychological, economic, intimidation, harassment, stalking, damage to property, and any other controlling or abusive behaviour that harms or may harm your safety, health, or well-being.

The Act protects individuals within a "domestic relationship," which includes those who are or were married, live or lived together (including same-sex couples), are parents of a child, share or recently shared a residence, or are family members. It also extends to engagement, dating, and customary relationships.

Administering a deceased estate in South Africa is a complex process, and the timeline can vary significantly.  It can take anywhere from six months to several years to finalize an estate.  Several factors can contribute to delays, including the workload and processing times at the Master of the High Court and the South African Revenue Service (SARS).

Because legal administration and regulation differs from country to country you should have a separate will for each country where you have assets.

When a deceased estate's liabilities exceed its assets, it's considered insolvent.  In such situations, the executor must sell assets to generate funds to pay outstanding debts. However, even after asset liquidation, there might not be enough money to cover all obligations.

Possible outcomes - 

• Asset Liquidation The executor will sell estate assets to raise funds.
• Insolvency If the proceeds from asset sales are insufficient to cover all debts, the estate is declared insolvent.
• Unsecured Debts May Not Be Paid  Unsecured debts, such as credit card balances, store accounts, and some personal loans, are often the first to be affected in an insolvent estate.  It's likely that these creditors will not receive full repayment, or possibly any repayment at all.
• Creditor Losses  Creditors, particularly those with unsecured debts, may incur losses as they may not recover the full amount owed to them.  The available funds are typically distributed proportionally among creditors, meaning everyone receives a percentage of what they're owed, but not the full amount.

A deceased estate must be reported to the Master of the High Court in the province where the deceased ordinarily resided. This should be done within 14 days of the date of death.

In certain limited circumstances, the estate can be reported to the Magistrate's office in the district where the deceased lived. This is only permissible if all of the following conditions are met

• The deceased died without a will (intestate); and
• The gross value of the estate is less than R125,000; and
• The cash available in the estate is less than R20,000.
   

Generally, a deceased estate should be reported by a family member of the deceased, such as the surviving spouse or children.  If no family member is available or willing to report the estate, the responsibility falls on anyone who possesses the deceased's will or controls any property belonging to the estate.
 

Yes, an employer can prevent you from working for a competitor if your employment contract includes a restraint of trade clause.

A restraint of trade clause protects the employer’s business interests (e.g., confidential information or trade secrets) by restricting you from:
* Working for a competitor,
* Starting a similar business,
* Practicing a specific profession,
...for a set period of time and within a specified area.

Is It Enforceable?
There’s no fixed rule on whether a restraint of trade is fair or unfair. Each case is assessed based on its unique circumstances. Generally:
* Reasonableness matters: The stricter the restraint (e.g., a long time period or large area), the more justification the employer needs to enforce it.

If you’re unsure about a restraint of trade in your contract or need advice, contact us for expert legal guidance.

No, if you resign or retire you are not eligible to claim unemployment benefits from the Unemployment Insurance Fund (UIF).

You should always notify your HR Department as early as possible in the pregnancy to ensure that systems can be put in place for you 

You have rights in the work place during pregnancy and after - 

Duration of Leave
Pregnant employees are entitled to at least 4 consecutive months of unpaid maternity leave.
Leave can begin up to 4 weeks before the due date or earlier if a doctor or midwife recommends it.

Leave Protection
Maternity leave cannot be reduced or altered by any employment contract.

Safety at Work
Pregnant or breastfeeding employees cannot be required to perform work that is unsafe for them or their child.

Reasonable Accommodation
Employers must make adjustments to accommodate pregnant employees. This includes identifying and addressing health and safety risks (e.g., ergonomic hazards).

Benefits During Leave
Employees on maternity leave can claim benefits from the Unemployment Insurance Fund (UIF).

If you believe your dismissal was unfair, you have several legal options in South Africa:

Constructive Dismissal
If you resigned due to mistreatment that made continued employment intolerable:
* Refer your case to the CCMA within 30 days of your resignation.
* Complete and submit the referral form (available on the CCMA website).
* Serve the form on your employer and include proof of delivery.
* Prove that your employer caused intolerable working conditions.

Unfair Dismissal or Employment Condition Disputes
* If you were dismissed for refusing changes to your employment terms, you can sue for automatically unfair dismissal in the Labour Court or civil courts.
* Disputes related to your employment contract can also be addressed through these courts.

Resigning During Disciplinary Action
* You may resign at any time if it doesn’t breach your contract.
* If you resign during disciplinary proceedings, your employer can continue the hearings until your notice period ends.

Written Resignation
* You must provide written notice (SMS, email, or WhatsApp are valid forms).
* Notice periods:
    - 1 week if employed for 6 months or less.
    - 2 weeks if employed for 6 months to 1 year.

Seek Professional Advice
Consult a labour law attorney for guidance on your specific case to protect your rights and ensure the best course of action.
For tailored legal assistance regarding dismissal, reach out to our experienced team for support.

Employee termination in South Africa can occur for various legal reasons, categorized as follows:
Voluntary Termination
The employee decides to resign due to personal or professional reasons, such as better opportunities, lack of growth, or retirement plans.
Involuntary Termination
The employer dismisses the employee for valid reasons, including:
* Poor performance
* Misconduct (e.g., insubordination or harassment)
* Violation of company policies
Mutual Termination
Both parties agree to end the employment relationship amicably, avoiding disputes.
Retrenchment (Operational Requirements)
Employers may terminate employees due to economic or operational needs, following fair procedures and offering severance pay.
Dismissal for Misconduct or Incapacity
* Misconduct: Termination due to unacceptable behavior like theft, dishonesty, or harassment.
* Incapacity: Termination based on health issues or inability to meet performance requirements after fair assessment.

Establish Valid Reasons: Misconduct, poor performance, or operational needs must justify the dismissal.
Follow Policies: Termination procedures must align with company policies and the Labour Relations Act.
Review and Assess: Employers must provide warnings, performance reviews, or counseling where applicable.
Notify the Employee: Inform the employee through a private meeting and provide reasons for termination.
Severance Package: Offer severance pay or benefits if required by law or policy.
Exit Process: Conduct an exit interview and ensure company property is returned.
Conclusion
Employee termination in South Africa must be conducted fairly and in line with labour laws. Employers must ensure valid reasons, fair procedures, and clear communication to avoid disputes or legal challenges.
 

Relevant documentation, witness statements, and expert testimony, depending on the case.

When terminating an employment contract, employers must ensure compliance with legal requirements and settle all outstanding obligations.
Notice Period
* The notice period must comply with the Basic Conditions of Employment Act (BCEA) or the employee’s contract.
Minimum notice:
    - 1 week for employment less than 6 months.
    - 2 weeks for employment between 6 months and 1 year.
Severance Pay
* Severance pay must be at least one week’s remuneration for every year of service, as required by law.
Outstanding Leave
* Employers must pay the employee for any accrued and unused leave days.
Deductions
* Deductions can only be made if:
    - The employee has agreed in writing.
    - The deduction is required by law, a court order, arbitration award, or a collective agreement.
Unemployment Insurance Fund (UIF)
* Employees or their dependents may claim UIF benefits upon termination of employment. Employers must ensure UIF contributions are up to date.
Mutual Agreement
* Employment can be terminated by mutual agreement through a mutual separation agreement, which outlines the terms and conditions of termination.
 

If you're facing issues at work, you can take the following steps:  

1. Resolve the Issue Internally
   - Speak to your supervisor or manager about the problem.  
   - Request a meeting with the Human Resources (HR) department
   - Submit a formal written complaint outlining your concerns.  

2. Refer the Issue Externally
   - If internal resolution fails, you can approach the relevant bargaining council or the CCMA (Commission for Conciliation, Mediation, and Arbitration)
   - For unfair labour practices, refer the issue within 90 days of the alleged incident.  
   - Complete the CCMA case referral form (LRA Form 7.11)

3. Seek Legal Assistance
   - Contact us at DDK Inc. for help, we have the expertise to guide and assist you from start to end! 

You as an employee can claim for Unemployment Benefits: 

* If your employment was terminated by the employer or a fixed-term contract ended.
* You were dismissed.
* The employer was declared insolvent.
* Their employer offered to renew their fixed-term contract on less favorable terms or did not renew it
* In the case of domestic workers, if the employer passes away.

If you need assistance understanding your UIF rights or eligibility, feel free to contact us for professional guidance.

No, landlords may not cut off utilities, change the locks, or take any action to force a tenant to leave without a court order. Such actions are considered illegal, and tenants can file a claim against the landlord for damages.

No. In South Africa, landlords cannot evict tenants without a court order. Evicting a tenant without following the legal procedures set out in the PIE Act is considered an unlawful eviction and can result in legal consequences for the landlord.
 

Yes, a court can refuse an eviction order if it finds that the eviction is not just and equitable. This may happen in cases where the tenant is from a vulnerable group (children, elderly, disabled) or if the eviction would leave the tenant homeless without alternative accommodation.
 

Yes, after the eviction, the landlord can pursue the tenant for unpaid rent or damages to the property through a civil lawsuit. If the tenant paid a security deposit, the landlord can deduct outstanding amounts from this deposit, but any additional amounts must be claimed through legal action.

If, when you send the tenant a formal letter, they do not pay what is due or correct the breach of contract by the time your deadline has expired, you can cancel the lease and ask them to move out. If the tenant moves out, you both avoid going to court and additional legal costs.
 

If a tenant does not defend or contest an eviction, the process can be quite quick - probably around three weeks. However, if the eviction goes to court, it can take a lot longer - up to eighteen months.
 

A landlord must provide reasonable notice to remedy any breach of the lease (typically 7-14 days) and must serve a notice to vacate if the breach is not remedied. Additionally, before a court hearing, the tenant must receive a Section 4(2) notice 14 days before the eviction hearing.

The most common valid reasons for eviction include:

• Non-payment of rent.
• Breach of other terms of the lease, such as damaging property or illegal activities.
• Expiry of the lease agreement, and the tenant refuses to vacate.
• Illegal occupation is when the tenant occupies the property without a valid lease.

If the tenant ignores the eviction notice and refuses to vacate, the landlord can proceed to court to obtain an eviction order. After the court issues this order, if the tenant still refuses to leave, the court sheriff can physically remove the tenant from the property.

A Section 4(2) notice is a formal document required under the PIE Act. It informs the tenant of the upcoming eviction hearing and must be served by the sheriff at least 14 days before the court hearing. This notice is critical to ensure that the tenant is aware of the proceedings and has a chance to defend themselves.
 

An urgent eviction is a fast-tracked eviction process used when the tenant’s continued occupation poses a serious risk, such as endangering the property or causing significant financial harm. To obtain an urgent eviction order, the landlord must prove that waiting for a standard eviction would result in severe harm.
 

This depends on how much the PQ changes:

• If the PQ deviation is 10% or less: You generally only need a certificate from your land surveyor or architect confirming this for the Deeds Office registration. If only your unit is bonded, your bond just needs to be lodged for endorsement. 
• If the PQ deviation is more than 10%: Yes. You need the consent of the mortgagee (bondholder) for every section in the scheme that has a mortgage bond registered over it. There's a specific notification process outlined in Section 24(6A) of the STA. Obtaining these consents can take time.

Yes, absolutely. You cannot simply start building. You need formal permission from both the Body Corporate of your scheme and usually the local Municipality.

Because the PQ is based on the floor area of your section relative to the total floor area of all sections, increasing your floor area increases your PQ. Consequently, the PQs of all other sections in the scheme decrease slightly. This means your share of the levies will increase, and your voting weight (when calculated according to PQ) will also increase.

Yes, it can be lengthy and costly. It involves fees for professionals (architect/surveyor, conveyancer), municipal plan submission fees, Surveyor-General fees, Deeds Office fees, and potentially costs associated with calling a Special General Meeting. The step involving mortgagee consents (if needed) can significantly add to the timeline. It's best to start the process well in advance

Ask the seller or estate agent for proof that the extension was done legally. This includes:

• Approved municipal building plans.
• Proof of the Body Corporate's special resolution.
• Confirmation that the scheme's sectional plans have been amended by a land surveyor, approved by the Surveyor-General, and registered at the Deeds Office, reflecting the unit's current size. Compare the physical size to the registered size on the Title Deed or official plans.

It depends:

• If the balcony/patio is legally part of your section on the original plans: Enclosing it might not be a Section 24 extension, unless the nature of the enclosure significantly increases the usable, habitable floor area. However, you still need trustee approval regarding the harmonious appearance of the building and municipal plan approval.
• If the balcony/patio is common property (even if you have exclusive use rights): Enclosing it is considered an extension of your section's boundaries and must follow the full Section 24 process (special resolution, plans, registration etc.).

You need the Body Corporate to authorise your extension via a Special Resolution. This requires approval from members holding at least 75% of the participation quotas (value) and 75% in number of the owners who are represented (in person or by proxy) at a general meeting specifically called for this purpose. Alternatively, it can be approved in writing (round-robin) by members holding at least 75% of both the value (PQ) and number of all the votes in the scheme.

Legally, it means increasing the registered boundaries or floor area of your specific unit (section) within the scheme. Common examples include adding a room, enclosing a balcony or patio (if it increases the section's registered size), or adding another storey. This process is governed by Section 24 of the Sectional Titles Act 95 of 1986 (STA). 

This is strongly discouraged and can lead to serious consequences:

• The Body Corporate or municipality could force you to demolish the extension.
• Difficulties selling your property later, as banks may refuse finance for purchasers due to the non-compliance.
• Incorrect levy calculations for potentially years.
• Insurance claims related to the extension potentially being rejected.
• Legal action taken against you by the Body Corporate or other owners.

The final step is registering the Surveyor-General-approved sectional plan of extension at the Deeds Office. This is done via an application prepared by a conveyancer. Once registered, your section's extension is legally recognised, and your Title Deed is endorsed with the new size.

Two main sets of plans are crucial:

• Municipal Building Plans: Prepared by an architect or draughtsperson for council approval before building.  
• Sectional Plan of Extension: Prepared by a land surveyor or architect after construction (based on actual measurements). This plan shows the new boundaries/floor area and revised participation quotas for all units. It must be approved by the Surveyor-General before it can be registered in the Deeds Office.

Yes, you can approach the Office of the Family Advocate and request their assistance, particularly if there is a dispute regarding your child. The court can also direct the Family Advocate to conduct an inquiry.

No, the Family Advocate cannot amend a court order. However, they can assist in amending or terminating parental rights and responsibilities agreements that were initially registered with their office, without requiring a new court order.

In cases involving domestic violence that impact child custody, the Family Advocate will consider the safety and well-being of the child as paramount in their assessment and recommendations. However, for immediate protection and legal recourse in domestic violence situations, you should approach the relevant authorities and courts dealing with such matters.

While the Family Advocate's primary focus is on care, contact, and guardianship, maintenance is often a related issue in divorce and separation. They may touch upon maintenance aspects in their recommendations, but there are specific legal avenues and courts dedicated to maintenance matters.

While the Family Advocate's primary focus is on care, contact, and guardianship, maintenance is often a related issue in divorce and separation. They may touch upon maintenance aspects in their recommendations, but there are specific legal avenues and courts dedicated to maintenance matters.

No, the Family Advocate does not make the final decision. They conduct an inquiry and provide a recommendation to the court based on their assessment of the child's best interests. The final decision rests with the presiding judicial officer.

No, the services of the Family Advocate are provided to the public free of charge.

You can contact the Office of the Family Advocate through the Department of Justice and Constitutional Development. They have offices located in various regions across South Africa. You can find their contact details on the Department of Justice website or by contacting your local Magistrate's Court.

While the Family Advocate acts in the best interests of the child, they are not the child's personal legal representative. They are a neutral party who assesses the situation and provides an unbiased recommendation to the court. The child may have a separate legal representative appointed in certain circumstances.

No, the Family Advocate's recommendation is not legally binding on the court. However, the courts are required by law to consider the Family Advocate's report and recommendations when making a decision regarding the best interests of the child.

During a consultation, the Family Advocate will interview both parents (separately or together) and often the child, sometimes with the assistance of a social worker or psychologist. They aim to understand the family dynamics, the child's needs and wishes, and the perspectives of each parent to facilitate mediation or prepare a report for the court.

If you disagree with the Family Advocate's recommendation, you still have the right to present your case and evidence to the court. The court will consider all the information, including the Family Advocate's recommendation, before making a final order.

 A Family Advocate is an impartial family law specialist employed by the Department of Justice and Constitutional Development in South Africa. Their primary role is to protect the best interests of children involved in legal disputes concerning their care, contact, access, and guardianship during divorce or separation.

The main role of the Family Advocate is to act as an advisor to the court and to assist families in reaching agreements that are in the best interests of their children. They evaluate the circumstances of the parties and make recommendations to the court when parents cannot agree on issues concerning their children.

The Family Advocate will likely need information about your personal circumstances, the background of the dispute, details about the child's living arrangements, school, health, and any other information relevant to the child's best interests.

You can typically approach the Family Advocate when there is a dispute regarding the care, contact, or guardianship of a child during divorce or separation; when you want to draft or register a parenting plan or parental responsibilities and rights agreement; or when you need to amend an existing registered agreement. The Court can also order the Family Advocate to conduct an inquiry.

Yes!!!! On 30 November 2006, South Africa made world headlines when it became the fifth country in the world (and the first in Africa) to legalise marriage between two people of the same sex under the Civil Union Act.
The Civil Union Act is the law that now provides for legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity.
 

Yes, it is possible to change your marital regime through a process known as a postnuptial agreement. However, this requires the consent of both spouses and a court application and it is beneficial to discuss this and work through an attorney to manage this process. 

What the Law Says
The law allows both you and your ex to form new relationships after divorce without unnecessary interference. As a parent, you generally cannot prevent your ex from introducing your children to a new partner. However, the best interests of the children remain the top priority. If the new partner poses a risk of abuse, neglect, or harm, the situation can be addressed legally.

If you are concerned about the new partner’s influence or safety around the children, you can ask the court to intervene. The court will always make a decision based on what is in the children’s best interests.

In many cases, concerns about a new partner stem from jealousy or fear of being replaced, rather than actual risks to the children’s well-being. That said, it is important for both parents to communicate respectfully and consider each other’s feelings to avoid unnecessary conflict. Mediation is often a helpful way to resolve these concerns.

Key Factors to Consider
When deciding if a new partner’s involvement is appropriate, the following factors are relevant

The New Partner’s Background – Does the partner pose any actual danger? (e.g., history of abuse, neglect, or substance abuse).
Children’s Emotional Well-being – Consider their current mental and emotional state.
Time Spent Together – How much time will the children spend with the new partner?
Parenting Style – How the new partner provides care and disciplines the children.
Values and Lifestyle – Does the partner’s lifestyle conflict with the children’s upbringing?
Influence on the Children – What impact does the new partner have on the children’s behavior or well-being?
Perception by the Children – What message does the new partner’s presence convey to the children?

Court Intervention
Except in extreme cases (e.g., abuse, neglect, substance abuse, or mental health concerns), courts are unlikely to stop a new partner from being around the children. Courts generally will not restrict a parent’s time with the children solely because of the new partner’s involvement.
The focus always remains on ensuring the children’s safety and well-being, not the personal preferences or feelings of the parents.

A marriage ceremony can take place almost anywhere, as long as the legal part of the ceremony is conducted or repeated in a church or other building used for religious services or in a public office (i.e. a Government office) or in a private dwelling house. Basically, as long as the signing of the register/marriage certificate is done indoors. 

Absoloutely! You need to have a frank discussion with a lawyer who can assist not only with the legal requirements but to give both parties some important and realistic advice and checks about how marraige will affect your future - Obtaining good legal advice before you get married can save you an enormous amount of stress and expense down the line, not only in the unfortunate case of a divorce. Remember that your marital status can affect future issues like your financial liability for debts incurred, or the division of assets in the case of a divorce. As the old saying goes "Plan for the worst and hope for the Best!" 

Contested divorces in South Africa can vary significantly in length, typically taking anywhere from several months to several years to finalize.  The timeline depends on several key factors:

• Complexity of the Case The more issues in dispute (such as asset division, child custody, or spousal maintenance), the longer the process is likely to take.
• Court Scheduling Court backlogs and the availability of court dates can significantly impact the timeline. High Courts, in particular, may have longer waiting periods.
• Negotiation and Settlement Even in contested divorces, many cases are resolved through negotiation and settlement before reaching trial. The willingness of both parties to compromise can shorten the process.
• Evidence Gathering Gathering necessary evidence, which might include financial audits, valuations, or expert witness testimony, can also contribute to the overall timeframe.

Contested divorces in South Africa can vary significantly in length, typically taking anywhere from several months to several years to finalize.  The timeline depends on several key factors:

• Complexity of the Case The more issues in dispute (such as asset division, child custody, or spousal maintenance), the longer the process is likely to take.
• Court Scheduling Court backlogs and the availability of court dates can significantly impact the timeline. High Courts, in particular, may have longer waiting periods.
• Negotiation and Settlement Even in contested divorces, many cases are resolved through negotiation and settlement before reaching trial. The willingness of both parties to compromise can shorten the process.
• Evidence Gathering Gathering necessary evidence, which might include financial audits, valuations, or expert witness testimony, can also contribute to the overall timeframe.

Civil Marriages Governed by the Marriage Act of 1961. A civil marriage is between a man and a woman and can include a religious ceremony. The marriage officer will provide a free handwritten marriage certificate on the day of the ceremony.
Civil Unions Recognized under the Civil Union Act of 2006. Civil unions allow any two people, regardless of gender, to marry or enter into a civil partnership.
The legal rights and responsibilities are the same as a civil marriage under the Marriage Act.
Customary Marriages Governed by the Recognition of Customary Marriages Act of 1998.These marriages follow indigenous African customary laws and traditions.To be legally valid, the marriage must be registered within three months of the ceremony.Customary law may allow polygynous marriages (one man with multiple wives), but specific legal conditions must be met.

•  Register your intent to marry at a Department of Home Affairs office. This should be done at least three months before the wedding date. 
•  Pay the required fee for the marriage certificate and other administrative costs. 
•  Choose a marriage officer, either from the Department of Home Affairs or a religious institution, to officiate the ceremony. 
•  Schedule a date for the ceremony and obtain a marriage license.
•  Invite witnesses to the ceremony; you need at least two and they must be over 16 years old and understand the language used during the ceremony. 
•  After the ceremony, your marriage officer will submit the marriage register to the Department of Home Affairs, and you’ll receive your marriage certificate. 
•  Consulting with legal professionals or the relevant government authorities can help ensure that your wedding planning aligns with the legalities of marriage in South Africa

In South Africa, if you are under 21 years of age, and have not been married before, you will need written consent of both of your parents on form BI-32. If only one of your parents is alive, or if you have a legal guardian, that person may sign the form BI-32. If your parents will not give consent for you to marry, you can request consent from a Judge of the High Court. Consent by a judge is given only if parental consent was unreasonably refused or there is sufficient evidence that getting marriage is in the best interest of the minor.
If you are a male under the age of 18, or a female under the age of 15, you will need the consent of the Minister of Home Affairs in addition to your parents' consent. If you manage to get married under the age of 21 without consent, your parents can ask to have your marriage dissolved.

There are 2 main types in SA
* In Community of Property all assets and liabilities acquired before and during the marriage are considered to be joint property of the parties. The assets and liabilities are both placed in a hypothetical “pot”. This means that both spouses have equal ownership of assets, and similarly, are equally responsible for any liabilities, irrespective of which spouse incurred the debt. 
* Out of Community of Property If you do not want the default regime of Community of Property to apply, you must sign an antenuptial contract (ANC) before your wedding. An antenuptial contract is a legal agreement that allows you to decide how your assets and debts will be handled during and after the marriage. When you marry out of community of property, each spouse’s assets and debts remain separate. This protects you from being held responsible for your partner’s financial problems.

1. Complete the BI-130 application form 
2. Get certified copies of your and your spouse's IDs 
3. Submit the form and any required documents to a Department of Home Affairs office **
4. Pay the processing fee 

** Other possible documents you might be required to submit
- A copy of any previous marriage certificate 
- A pre-paid, A4 size self-addressed special deliver envelope 
- A valid passport if one of the partners is a foreign national 
- A completed Form DHA-1763 (Declaration for the Purpose of Marriage) 
- A completed Form DHA-1766 (Civil Union register) 
- A completed Form DHA-1764 (Registration of a Civil Union) 
- A letter from your lawyer confirming your ANC (Ante Nuptial Contract) if marrying out of community of property 

Each spouse keeps the assets they brought into the marriage (these must be listed in the antenuptial contract as the “starting value”).
Any assets gained during the marriage (accrual) will be shared equally if the marriage ends. Upon divorce, the value of each spouse’s estate is calculated, and the spouse with the larger estate must pay the other spouse half of the difference. It’s important to accurately list your starting assets in the antenuptial contract to ensure they are excluded from any future calculations.

If you don’t want to share any assets or liabilities, you must exclude the accrual system in your antenuptial contract. Under this system, each spouse keeps their own assets and debts—both those brought into the marriage and those acquired during the marriage. If the marriage ends, there is no sharing of assets or debts.

No, typically the debtor retains possession and use of the movable assets even after a General Notarial Bond is registered.  This is a significant advantage, allowing businesses to continue operating with their equipment and stock. However, in the event of default and enforcement, the creditor may need to obtain possession to perfect their security.

 Enforcement typically involves these steps:

• Obtain a Court Order: The creditor will need to apply to court for an order authorizing the attachment and taking of possession of the bonded movable assets.
• Attachment: Upon obtaining a court order, the Sheriff will attach the movable assets covered by the GNB.
• Sale and Recovery: The attached assets can then be sold, and the proceeds used to settle the outstanding debt owed to the creditor.

GNBs offer several benefits to creditors:

• Broad Security: Covers a wide range of assets with one registration, simplifying the security process.
• Debtor Retains Use of Assets: Allows the debtor to continue operating their business and using the assets, unlike some forms of security that require handing over possession.
• Preferential Claim: In case of debtor insolvency, a registered GNB grants the creditor a preferential claim over the bonded movable assets, giving them priority over unsecured creditors.
• Public Notice: Registration at the Deeds Office provides public notice of the security interest, strengthening the creditor's position.
   

A GNB can cover a broad spectrum of movable assets owned by the debtor. This typically includes, but is not limited to:

• Machinery and Equipment
• Vehicles and Fleet
• Inventory and Stock
• Furniture and Fittings
• Book Debts (in some cases, though often requires cession as well)
• Essentially, any movable property the debtor owns that can be used as security for the debt.

The main distinction is:

• General Notarial Bond: Covers all movable assets of the debtor as a blanket security, without listing specific items.
• Special Notarial Bond: Secures debt against specifically listed and identified movable assets.
• General Bonds are broader and simpler to establish, while Special Bonds offer more targeted security over particular valuable assets. The best type depends on the specific circumstances and the nature of the assets being secured.
   

While it's possible to apply for Guardianship without legal representation, it is highly recommended to seek legal assistance from experienced family law attorneys like AUCAMP Attorneys. Guardianship applications can be complex, involving legal procedures, documentation, and court appearances.  A lawyer can:

• Advise you on the best course of action.
• Help you gather the necessary evidence and documentation.
• Draft and file the court application correctly.
• Represent you in court and advocate for the child's best interests.
• Ensure you understand your rights and responsibilities throughout the process.

AUCAMP Attorneys offers expert legal services in all aspects of Guardianship in South Africa.  We can:

• Provide expert legal advice and guidance.
• Assess your specific situation and determine the best legal strategy.
• Assist with gathering necessary documentation and evidence.
• Prepare and file your Guardianship application with the court.
• Represent you in court proceedings.
• Negotiate parental plans if biological parents retain some rights.
• Ensure the process is handled with sensitivity and with the child's best interests at the forefront.

Applying for Guardianship can affect biological parents' rights, but it's not automatic.
Guardianship being granted to someone else doesn't automatically terminate parental rights. To limit, suspend or terminate biological parental rights, you must specifically request this from the court under Section 28 of the Children's Act as part of your Guardianship application.
The court decides whether it's in the child's best interests for biological parents to retain some or all of their rights.
Contact with Biological Parents: The court will also decide if biological parents should still have contact with the child, considering the child's best interests.

The timeframe can vary depending on the complexity of the case and court schedules.  It can take several months to finalize a Guardianship order.  AUCAMP Attorneys will work diligently to expedite the process while ensuring all legal requirements are met.

Costs will include legal fees for attorney representation, court filing fees, and potentially costs for reports or assessments if required by the court.  AUCAMP Attorneys can provide you with a transparent breakdown of potential costs after an initial consultation to understand your specific situation.

The child's best interests are paramount.  The court will consider many factors, including:

1. The child's best interests overall.
2. Your relationship with the child: Its nature and history.
3. Your commitment to the child: Emotional and practical.
4. Your financial contribution to the child's upbringing.
5. Reasons why existing guardians are unsuitable or why their rights should be limited/terminated.
6. Any other relevant factors affecting the child's welfare.
    

If your application is successful, the court will issue a Guardianship order granting you legal Guardianship of the child. This order will outline your rights and responsibilities. You will then have the legal authority to make decisions for the child and ensure their well-being.

Guardianship is the legal right and responsibility to care for a child, making important decisions about their life and well-being. It’s crucial for ensuring children are raised in stable, secure, and nurturing environments. Guardianship provides legal protection for children, ensuring their needs are met and their rights are upheld.
 

This is a key distinction:
Section 23 (Care and Contact): Only grants the applicant the right to care for the child and have contact. It does not automatically grant full parental rights and responsibilities of a guardian.
Section 24 (Guardianship): An application for full legal guardianship. If granted, the applicant obtains all the rights and responsibilities typically held by a parent under the Children's Act, including decision-making powers. This is generally what caregivers need to apply for to have full legal authority.
 

While parents are usually natural guardians, there are situations where others need to apply, such as:

• Grandparents or Family Members: Raising a child when biological parents are unable to.
• Caregivers: Individuals who have taken on the primary care of a child who is not their own, and need legal standing to make decisions for them (schooling, medical care etc.).
• In situations where parents are deceased or deemed unfit: To ensure the child's care is legally secured.

Yes, creditors can defend against attempts to set aside a disposition they received.  Valid defenses exist, such as:

• "Ordinary Course of Business": You can argue the transaction was a normal business dealing, conducted in the ordinary course of business and not intended to gain an unfair preference.
• "No Intention to Prefer": You can argue that, even if there was a preference, there was no intention on the debtor's part to unfairly favor you over other creditors.
• Solvency at the Time: In some cases, you might argue that the debtor was solvent at the time of the disposition, meaning it doesn't fall under the impeachable disposition rules (depending on the specific section of the Insolvency Act being invoked).
• Value was Given: For "dispositions without value" claims, you can argue that value was indeed given for the asset transfer.
• If you are a creditor facing a claim that a disposition you received is impeachable, contact Aucamp Attorneys immediately.  We can assess the specifics of your situation, advise you on your legal position, and build a strong defense to protect your interests. The burden of proof often lies with the liquidator attempting to set aside the disposition, and strong defenses can be successful.

As a creditor, be alert to these "red flag" scenarios that may indicate an impeachable disposition:

• Unusual Asset Transfers Just Before Insolvency: Did the debtor sell off valuable assets (property, equipment, inventory) shortly before liquidation proceedings commenced? Especially if sold at suspiciously low prices or to related parties (family, associates, other companies linked to the debtor).
• Payments Favoring Specific Creditors: Did you notice certain creditors being paid in full or receiving large payments shortly before insolvency, while other creditors (like yourself) were ignored?
• "Donations" or Asset Gifts: Did the debtor suddenly make substantial donations or gift valuable assets in the months leading up to insolvency?
• Releasing Debtors from Obligations: Did the debtor release individuals or companies from debts owed to them shortly before insolvency? This reduces the estate's assets.
• Transactions with Insiders: Be particularly suspicious of transactions between the debtor and related parties (directors, family members, associated companies) as these are often scrutinized more closely.
• Transactions Outside the "Ordinary Course of Business": Did the debtor engage in unusual business deals or asset disposals that don't seem typical for their normal operations?
  • If you observe any of these, it's worth investigating further and contacting Aucamp Attorneys to assess if an impeachable disposition has occurred.

Successfully setting aside an impeachable disposition is a positive outcome for creditors. It means:

• More Assets in the Estate: The asset (or its value) that was improperly disposed of is recovered and added back to the insolvent estate.
• Potentially Higher Dividends: With more assets in the estate, there is a greater pool of funds available to distribute to creditors. This increases the potential dividend you and other creditors may receive.
• Fairer Distribution: It helps ensure a fairer distribution of assets, as the debtor's attempts to unfairly favor certain parties are undone.

As a creditor, Impeachable Dispositions are crucial to you because they are your legal tool to increase the assets available for distribution in an insolvent estate. If a debtor has unfairly given away or transferred assets before insolvency, these laws allow those assets to be reclaimed and added back to the pool, directly improving your chances of recovering more of what you are owed.  It's about ensuring fairness and maximizing your returns in a difficult situation.  Aucamp Attorneys is here to help you identify and pursue these opportunities for recovery.
 

As a creditor in South African insolvency, you have the right to:

• Fair Treatment: The law is designed to ensure you are treated fairly and receive a proportional share of the insolvent estate's assets.
• Challenge Unfair Transactions: You have the right to bring potentially impeachable dispositions to the attention of the liquidator and, if necessary, the court.
• Benefit from Asset Recovery: If an impeachable disposition is successfully set aside, the recovered assets will be added to the estate, directly benefiting all creditors, including you.
• Legal Representation: You have the right to legal representation from attorneys like Aucamp Attorneys to protect your interests and navigate the complexities of insolvency law.
   

If you suspect an impeachable disposition, act promptly:

• Document Your Suspicions: Gather any evidence you have - dates, details of transactions, names of parties involved, any documentation you can access.
• Contact Aucamp Attorneys Immediately: Time is often of the essence in insolvency matters. Contact us for a confidential consultation. We can assess your information and advise on the best course of action.
• Inform the Liquidator/Trustee: If a liquidator or trustee has already been appointed, inform them in writing of your suspicions and provide any evidence you have gathered. Crucially, ensure you formally log your concerns.
• Work with Aucamp Attorneys: We can assist you in:
• Investigating further to gather more evidence and determine the strength of a potential impeachable disposition claim.
• Engaging with the Liquidator/Trustee to ensure they properly investigate your concerns.
• Bringing a Court Application (if necessary): If the liquidator doesn't act, or if further legal action is required, we can represent you in applying to the High Court to have the disposition set aside.

Yes, if you are an eligible employee as defined by COIDA, you can claim compensation for medical expenses, loss of earnings, and disability. 

Yes, a recent Constitutional Court ruling has made it possible for domestic workers in private homes to claim from the Compensation Fund.

Generally, the Compensation Fund doesn't pay for temporary disablement of three days or less, but medical expenses might still be covered.  

No, it is generally not permissible to use sick leave for injuries on duty. IOD leave or special leave should be considered.

Yes, all employers in South Africa are required to register with the Compensation Fund and pay annual assessments.
 

Report the injury to your employer, who needs to submit a WCL2 form. You'll also need medical reports. Keep copies of all documents.

You must ensure a safe working environment, report the injury to the Compensation Commissioner within seven days (using form WCL2), provide support to the injured employee, and comply with COIDA regulations.
 

Failure to comply can result in legal repercussions and financial liabilities.   

You have the right to object to the decision within 180 days by submitting form W929 to the Commissioner.   

You can still report the injury directly to the Compensation Commissioner, but it's best to try and ensure your employer fulfills their reporting duties.

It's a letter issued by the Compensation Commissioner to companies that are up-to-date with their COIDA payments, proving their compliance.

COIDA stands for the Compensation for Occupational Injuries and Diseases Act. It's the law in South Africa that governs compensation for work-related injuries and illnesses.  

The fund provides financial assistance for medical treatment and compensation to employees who suffer work-related injuries or diseases.
 

For absences of 4 days to 3 months, you must pay the employee at least 75% of their earnings from the first day of absence. For longer absences, you pay for the first three months, and then the employee claims from the Fund.

Complete and submit all relevant forms to the Compensation Commissioner and let them make the decision.

Report the incident to your employer immediately (preferably in writing), seek medical attention, and understand your rights under COIDA.

You can claim for income replacement (installments, lump sum, or pension), medical expenses, and funeral expenses (in case of death).

You can seek assistance from the Compensation Commissioner's office or consult with a labour law firm like Aucamp Attorneys for expert guidance.

Generally, members of the SANDF, SAPS, independent contractors, and certain workers working outside South Africa are excluded.  

Yes, an individual can be declared insolvent if their liabilities exceed their assets. The legal process for this is known as voluntary sequestration. 

Yes, while insolvent, you cannot serve as a director of a company or a member of a close corporation without special permission from the trustee. Certain positions are restricted, and legal advice is recommended to clarify which roles require permission and which are entirely excluded. For example, during sequestration, you may not hold office as a trustee of an insolvent estate, a business rescue practitioner, a member of parliament, a registered liquor distributor, or the executor of a deceased estate.

1. Apply to Court: You must apply to the court to be declared bankrupt.  
2. Surrender Your Estate: Hand over control of your assets to the court.  
3. Asset Distribution: A court-appointed trustee will sell your assets and distribute the proceeds to your creditors.  

The court will assess your statement of affairs to confirm insolvency. If approved, your legal status will be changed to "sequestrated".  

- Loss of Assets: Your assets may be sold to repay creditors.  
- Credit Record Impact: Insolvency negatively affects your credit rating.  
- Limited Credit Access: You may have restricted access to credit for up to 10 years.  

It’s important to seek legal advice to fully understand the insolvency process and its implications. Contact us for professional guidance tailored to your situation.  
 

Once the notice of intention to surrender your estate is published in the Government Gazette, you immediately stop making payments to creditors. Any garnishee orders against your salary are cancelled, and creditors are no longer allowed to approach you or demand payment. After the court finalises the sequestration order, your estate is placed under the control of a trustee. The trustee sells your assets, and the proceeds are used to pay the minimum required benefits to creditors. Up to 80% of your debt can be written off, as the law only requires repayment of 20 cents for every rand owed. The costs of sequestration, including legal fees, are also covered. Once the process is complete, you are debt-free and able to start fresh financially.

As an insolvent individual, you do not have full contractual capacity. This means you are legally required to disclose your insolvency status when asked in any agreement. Additionally, you must obtain written permission from your trustee to enter into a credit agreement. However, this does not prevent you from entering into essential credit agreements, provided the trustee approves them. Once you have been rehabilitated, you will regain full contractual capacity.

Once you are declared bankrupt, all property you owned before the date of sequestration, as well as any property acquired during the sequestration period, becomes part of the insolvent estate.

This means you will not have ownership of any immovable property, except for assets that you are legally entitled to retain in a separate estate.

For clarity on which assets may be excluded and how this process works, contact us for professional legal advice.

Compulsory liquidation is a legal process used to wind up a company or partnership due to insolvency. It begins with a winding-up order issued by the court.

A creditor typically files a winding-up petition in the High Court, claiming that the company owes money and is unable to pay. In some cases, the petition may be brought by the company itself, its directors, shareholders, or others such as an administrator, the Financial Services Authority, or the Official Receiver.

Even if the company disputes the debt or has no assets, the court can still issue a winding-up order. It is essential to resolve any debt disputes with creditors before this order is made, as the consequences of compulsory liquidation are severe and may include the forced sale of assets to settle debts.

If your company is facing financial distress or a winding-up petition, contact us for expert legal advice to protect your interests and explore your options.
 

Liquidation is the legal process of closing down a company by selling its assets to pay for the costs and expenses of the winding-up process. This can be done through private sale or public auction. Any remaining funds after covering these costs are distributed to creditors based on their legal priority and rights in the company.
To decide if a company should be liquidated, it must be determined whether the company can pay its debts as they become due (known as de facto insolvency). This decision involves input from creditors, the liquidator, the company owner, and the court.

Once a company is placed in liquidation, it stops trading, unless continued operations are necessary and in the best interest of the creditors. If you need guidance on company liquidation, contact us for professional legal advice.
 

Voluntary liquidation is often simpler than voluntary sequestration because a business does not need assets to begin the process. In contrast, individuals must have enough property or cash to pay at least ten cents to the rand to benefit creditors. By law, once a business’s liabilities exceed its assets, it must stop trading and either apply for business rescue or liquidate voluntarily. The personal assets of the business owner are generally not affected, unless the owner has signed surety for debts or managed the business finances irresponsibly.

Yes, South African law recognizes various types of Trade Marks.  The most common is an "ordinary" Trade Mark, but you can also register "collective" Trade Marks (used by associations) and "certification" Trade Marks (certifying standards).  Additionally, "non-traditional" Trade Marks, such as sound marks, are also registrable if they are distinctive.
 

Yes, you can sell or assign your patent application rights even before the patent is officially granted. To ensure the new owner is legally recognized, it's essential to record this change of ownership with the South African Patents Office within six months of the transfer.

Copyright doesn't protect ideas in their abstract form.  To obtain copyright protection, you need to express your original idea in a tangible format. This could be writing it down in a book or script, recording music, creating artwork, filming a movie, or developing computer software. Copyright protection arises automatically for original works once they are put into a material form.
 

A patent offers significant benefits for inventors. It grants you the exclusive right in South Africa to prevent others from manufacturing, using, or selling your patented invention without your permission for up to 20 years. This exclusivity allows you to:

• Control the market for your invention and potentially gain a competitive advantage.
• License your patent to others for commercialization, generating revenue.
• Take legal action against those who infringe your patent rights.

Ultimately, patents encourage innovation, investment in research and development, and the transfer of technology, benefiting both individual inventors and the South African economy

Any individual or business that is the owner of a Trade Mark can apply for registration. You don't need to be a South African citizen, but you must genuinely intend to use or already be using the Trade Mark within South Africa.  While you need a South African business address for the application, representation by a South African practicing attorney is permitted and often advisable. Note that representation by non-attorneys like auditors or accountants is not permitted for Trade Mark applications.

A Trade Mark is essential for branding your goods or services. It acts as your unique identifier in the marketplace, helping customers recognize and remember your offerings.  By distinguishing you from competitors, a Trade Mark builds brand recognition, customer loyalty, and ultimately, business value, whether you offer products (like clothing or food) or services (like restaurants or consulting).
 

Before investing in Trade Mark registration, a thorough search is crucial.  It helps determine if any identical or confusingly similar Trade Marks already exist on the South African Trade Marks Register.  This prevents your application from being rejected and avoids potential future conflicts or infringement issues with existing Trade Mark holders.

While it is possible to represent yourself, navigating the legal procedures and preparing the necessary documentation for a Rule 43/58 application can be complex. Engaging an experienced family law attorney, like the team at Aucamp Inc., can significantly increase your chances of a successful application and ensure your rights are protected throughout the process. We can provide expert guidance and support to help you secure the financial assistance you need during this challenging time.

The court will assess your financial needs and your spouse's ability to pay. You will need to provide detailed information about your income, expenses, and assets in your application. The court aims to ensure that you and your children can maintain a reasonable standard of living during the divorce process, without causing undue financial hardship to the other spouse. 

Compared to the full divorce proceedings, the process for obtaining an interim maintenance order through a Rule 43/58 application is generally quicker. While timelines can vary depending on the court's workload and whether the application is opposed, a decision can often be reached within a few weeks to a couple of months from the date of application.   

Yes, you can apply for a contribution towards your legal costs as part of a Rule 43/58 application. The court recognises the importance of both parties having equal access to legal representation and may order your spouse to contribute towards your legal fees to ensure you can present your case effectively.   

Interim maintenance, also known as "maintenance pendente lite," is a temporary financial support order granted by the court during divorce proceedings. It helps a financially dependent spouse and/or children cover their essential living expenses until the divorce is finalised and a final maintenance order is issued. Think of it as a financial bridge during a period of uncertainty.   

If your spouse fails to comply with an interim maintenance order, you have legal recourse. You can approach the court to enforce the order, which may involve various legal actions to compel payment.   

Interim maintenance is a temporary measure that is in place only until the divorce is finalised. The final maintenance order, which forms part of the divorce decree, will be based on a more thorough investigation of both parties' financial circumstances and will determine the long-term maintenance obligations, if any.

Interim maintenance can cover a range of essential living expenses, including but not limited to:   

• Basic living costs (food, clothing, etc.)   
• Accommodation (bond payments, rent)   
• School fees and related educational expenses   
• Medical aid contributions and medical costs   
• Transport costs
• Childcare expenses

The court will consider what is reasonable and necessary based on the parties' previous standard of living.

You can apply for interim maintenance at various stages of the divorce process: before the divorce summons is issued, at the same time as issuing the summons, or even after your spouse has indicated their intention to defend the divorce. The timing will depend on your specific circumstances and when the need for financial support becomes critical.   
 

Generally, the financially weaker spouse in a divorce can apply for interim maintenance for themselves and/or their dependent children. The applicant needs to demonstrate a need for financial support and that the other spouse has the means to provide it.   

Joint Wills were more common historically, particularly in older marriages in community of property.  However, in modern estate planning in South Africa, Joint Wills are becoming less common and are generally not recommended by estate planning professionals like Aucamp Attorneys for most couples today.  While some people are still drawn to their perceived simplicity, the drawbacks often outweigh the benefits in contemporary circumstances.

Ironically, while intended to prevent disputes, Joint Wills can sometimes lead to them.  The very inflexibility that is a core problem can become a source of conflict.

• Survivor's Resentment: The surviving partner may feel trapped and resentful of being bound by a Will they can no longer alter, especially if circumstances change significantly. This can create tension with beneficiaries who are set to inherit according to the fixed Joint Will.
• Interpretation Issues: The wording of Joint Wills, especially DIY or poorly drafted ones, can sometimes be ambiguous, leading to disputes about the intended meaning and application of clauses, particularly concerning the binding nature of the Will.
• Challenges to Validity: While not inherently invalid, the complexities of Joint Wills and "massing" can sometimes create grounds for legal challenges if there are questions about intent, proper execution, or undue influence. 

Speak with Aucamp Attorneys and let us assist you with sound, factual and realistic legal guidance on what type of will would best suit your specific and unique situation.

Yes, in many cases, legally, yes.  South African courts may interpret a Joint Will as containing elements of a "Mutual Will," implying a binding agreement between the testators not to revoke the Will independently, especially after the first death.  If "massing of estates" (combining assets for joint distribution) is also present in the Joint Will, and the surviving spouse accepts benefits under the Will (adiates), they are very likely to be legally bound by the entire testamentary plan outlined in the Joint Will.  This means they cannot unilaterally change the distribution of their own assets as dictated by the Joint Will, even if their wishes change or circumstances demand it.
 

For almost all couples in South Africa, Aucamp Attorneys strongly recommends against Joint Wills and advocates for:

• Separate Wills: For individuals who want complete control over their own estate and have independent wishes. Each person creates their own Will, individually tailored to their circumstances. This provides maximum flexibility.
• Mirror Wills: The preferred option for most couples who want similar estate plans. Mirror Wills are separate Wills, one for each partner, that contain very similar or "mirror image" provisions (often leaving everything to the survivor and then to common beneficiaries). Crucially, each person retains the absolute right to change their own Mirror Will at any time. This achieves a shared estate planning vision while maintaining individual control and adaptability – the best of both worlds.

Absolutely, yes!  Whether you are considering a Joint Will, Mirror Wills, or separate Wills, it is always advisable to seek professional legal guidance from Aucamp Attorneys.  We can:

Clearly explain the pros and cons of each option in detail, tailored to your specific circumstances.
Help you determine the best type of Will for your needs as a couple.
Draft legally sound Wills (whether Mirror or Separate) that accurately reflect your wishes and comply with South African law.
Ensure you understand the implications of your choices.
Provide peace of mind knowing your estate plan is robust, flexible, and protects your loved ones effectively, avoiding the pitfalls associated with Joint Wills.

Contact Aucamp Attorneys and we will arrange an initial meeting at a convenient time for you to discuss your options and what they might entail for the future. 

The most significant drawback of a Joint Will is its inflexibility and potential for irrevocability after the first death.  Once one partner passes away, the Joint Will often becomes very difficult, if not legally impossible, for the surviving partner to change.  This is because Joint Wills can be interpreted as containing a mutual agreement or contract between the partners – a promise to adhere to the agreed testamentary plan.
 

Life circumstances change!  The inflexibility of a Joint Will can create serious problems for the surviving partner because:

• Changed Needs: The survivor's financial needs might change drastically after the first death (e.g., increased medical expenses, need for assisted living). A Joint Will might prevent them from accessing assets or restructuring their finances if the Will dictates how those assets must be distributed later.
• Remarriage or New Relationships: If the survivor remarries or forms a new significant partnership, a Joint Will can prevent them from providing for a new spouse or stepchildren from assets bound by the Joint Will. Their hands are tied by the original, unchangeable document.
• Evolving Family Dynamics: Beneficiary needs can change after the first death (illness, disability, responsible vs. irresponsible children). The survivor is often locked into the original plan, unable to adapt the Will to meet these new realities or address unforeseen circumstances.

This lack of flexibility can have severe and unintended consequences for the surviving partner and their loved ones.
 

Ideally, yes, both partners should be present to sign before the Notary Public simultaneously. This is the most straightforward and preferred method, ensuring both parties are clearly identified and witness each other's signatures.

However, if simultaneous presence is impossible, signing via Power of Attorney (POA) can be facilitated.  One partner can grant a Power of Attorney to an Aucamp Attorneys representative (or another trusted individual) to sign on their behalf before the Notary. This POA document itself must also be properly executed and may require notarisation depending on the circumstances.

Both parties to a cohabitation must sign the agreement in front of an admitted and practising Notary Public, in the presence of two competent witnesses. The Notary Public will attest to the identity and signature of the parties.

The Notary Public’s stamp or seal is usually affixed on the last page of the agreement. It is general practice to refer to the Notary Public’s protocol number in the cohabitation agreement.

There are several reasons why parties who are cohabitating should consider entering into a cohabitation agreement which regulates their proprietary affairs.

The main reason relates to a partner’s right to maintenance or support. The current position with regards to the right to maintenance or support from the estate of a deceased domestic partner, is that no such right automatically exists.

A surviving partner will find it very difficult to convince the courts of his/her right to claim maintenance or support from a deceased domestic partner’s estate, if the parties did not enter into a binding contract with the intention by both parties to be legally bound.

Various other issues need to be considered when parties are cohabitating, i.e. finances during the existence of the relationship, joint ownership of assets, division of estates upon termination of the relationship, investment, maintenance, death and children.
 

For notarisation, we typically require

• The Life Partnership Agreement document: The final, agreed-upon agreement, ready for signing. Note: As Notaries, we generally do not draft these agreements; clients should obtain legal drafting assistance from an Attorney.
• Original Identification Documents (ID): Acceptable forms of ID for FICA compliance include valid South African ID books/cards, passports (for foreign nationals), and driver's licenses (in some cases, check current FICA guidelines). Certified copies may be acceptable in specific circumstances, but originals are preferred.
• Proof of Address: Recent (within 3 months) proof of residential address for each partner, complying with FICA requirements (e.g., utility bill, bank statement).
   

Yes, absolutely. Life Partnership Agreements in South Africa are applicable to both heterosexual and same-sex couples who are living together in a committed relationship.  The legal principles and notarisation process are the same, regardless of the couple's gender.

A cohabitation agreement, also referred to as life partnership agreement, provides certainty and structure to the legal relationship between unmarried couples who are living together.
 

As a Notary Public, our role is to notarise the Life Partnership Agreement. This means we:

• Verify the Identities of both partners signing the agreement, ensuring they are who they claim to be (through FICA compliant ID verification).
• Witness the Signatures of both partners, confirming they signed the agreement freely and in our presence (or via Power of Attorney if applicable).
• Certify the Execution of the document with our official notarial seal and certificate. This notarisation adds a layer of legal formality and authenticity to the agreement, making it more readily acceptable to authorities and courts.
   

Not necessarily "better," but ADR methods can offer advantages:

• Faster and potentially less expensive resolution.
• More control over the outcome (especially in Mediation).
• Preservation of relationships (often in Mediation).
• However, litigation may be necessary for complex cases, when ADR fails, or when a binding court order is required.  The best approach depends on your specific circumstances.

Getting started is easy:

• Contact us for a confidential consultation. You can call us, email us, or use the contact form on our website.
• Schedule a consultation to discuss your case details with our experienced litigation team.
• We will assess your situation, answer your questions, and advise you on the best course of action.

Civil litigation is about private disputes between parties seeking remedies like compensation. Criminal litigation involves the State prosecuting individuals for offences against the law, with potential penalties like imprisonment or fines. Civil cases are about rights and remedies; criminal cases are about offenses and punishment.

The duration varies greatly depending on the complexity of the case, court schedules, and whether the matter settles or proceeds to trial and potential appeals.  It can range from several months to years. Aucamp Attorneys will provide you with a realistic estimate based on your specific case as the process unfolds.
 

Aucamp Attorneys provides expertise across a broad spectrum of civil litigation areas, including:

1. Commercial Litigation
2. Contract Disputes
3. Property Disputes
4. Trust and Estate Litigation
5. Insolvency and Business Rescue Litigation
6. Defamation
7. General Civil Claims

The key stages are generally:
1. Initial Consultation:  Discussing your matter with attorneys like Aucamp Attorneys.
2. Pre-Litigation (Letter of Demand): Attempting to resolve the dispute before court.
3. Pleadings (Summons & Defence): Formally initiating the lawsuit and responding.
4. Discovery: Exchanging evidence and information.
5. Pre-Trial Phase:  Interlocutory steps and pre-trial conferences.
6. Trial: Presenting your case in court.
7. Judgment & Appeal: Court decision and potential appeals.
(Aucamp Attorneys guides you through each stage – see our process overview on this page for more detail and contact us for assistance.)
 

After a Summons is issued and served:

• The Defendant must formally respond by filing a "Notice of Intention to Defend" and a "Plea" outlining their defence.
• The case proceeds to the Discovery Phase, where both parties exchange evidence.
• Interlocutory Applications or Pre-Trial Conferences may follow to resolve specific issues and prepare for trial.

Civil litigation is the formal legal process in South Africa used to resolve disputes between individuals, businesses, or organizations in court. It involves seeking remedies like financial compensation or court orders to enforce rights or address grievances, rather than criminal penalties.

Civil litigation covers a wide range of disputes, including:

•  Contract Disputes: Breaches of agreements, disagreements over contract terms.
•  Personal Injury Claims: Claims for injuries caused by negligence or wrongful actions.
•  Property Disputes:  Conflicts over land ownership, boundaries, or property rights.
•  Debt Recovery:  Pursuing outstanding payments for goods or services.
•  Commercial Disputes: Business disagreements, partnership conflicts, shareholder disputes.
•  Insolvency and Business Rescue: Legal processes related to financial distress.
• Trust and Estate Litigation: Disputes over wills, trusts, and deceased estates.
•  Defamation Claims:  Claims for damage to reputation through false statements.
•  And many other civil disputes.
   

The appropriate court depends on factors like:

• The type of claim: Labour matters go to the Labour Court, for example.
• The monetary value of the claim: Small Claims Court (under R12,000), Magistrate's Court (under R400,000), High Court (over R400,000 and complex matters).
• Geographical location: Courts have jurisdiction over specific areas.
• Aucamp Attorneys will advise you on the correct court for your matter, ensuring proper jurisdiction.

No, there is no official registration system for Living Wills or Healthcare Proxies in South Africa.  However, it's crucial to make sure your documents are accessible when needed:

• Keep Originals Safe but Accessible: Store the original documents in a safe place known to your family and healthcare proxy (if appointed).
• Provide Copies: Give copies to your doctor, family members, and your healthcare proxy.
• Discuss with Healthcare Providers: Inform your primary care doctor and any relevant specialists about your Advance Directives and ensure it's noted in your medical records.
• Consider Digital Access (Securely): In addition to paper copies, consider storing a secure digital copy that can be easily accessed in emergencies (e.g., using a secure cloud service accessible to trusted individuals).

For most people, having both a Living Will and a Healthcare Proxy is the most comprehensive approach to advance care planning. They complement each other:

• Living Will: Provides your specific instructions for treatment refusals, ensuring certain lines are clearly drawn according to your wishes.
• Healthcare Proxy: Provides a trusted decision-maker to handle situations not covered by your Living Will, to interpret your wishes, or to make broader healthcare choices in unforeseen circumstances.

Together, they offer a robust framework: your Living Will gives clear directions, and your Healthcare Proxy provides a trusted agent to navigate complex situations and make decisions in your best interests when you cannot.

The two primary forms are:

• Living Will (or Instruction Directive): Focuses on directly stating your wishes about refusing specific medical treatments in defined future scenarios (e.g., terminal illness, permanent unconsciousness). You are giving the instructions.
• Healthcare Proxy (or Durable Power of Attorney for Healthcare, or Substitute Directive): Focuses on appointing a trusted person to make healthcare decisions on your behalf if you lose capacity. Someone else is making decisions for you, guided by your values and best interests.

While healthcare providers are ethically and increasingly practically expected to respect valid Advance Directives, disagreements can sometimes arise in complex or ethically challenging situations.

• Open Communication: Encourage open communication between your proxy (if appointed), your family, and your healthcare team to clarify wishes and address concerns proactively.
• Ethical Consultation: Hospitals and healthcare facilities often have ethics committees that can be consulted to help resolve ethical dilemmas and interpret advance directives.
• Second Opinions: Your proxy (or family) can seek second medical opinions if there are disagreements about the appropriateness of treatment.
• Legal Recourse (Rare but Possible): While challenging to enforce directly in court currently, in extreme cases of disregard for a clear and valid Advance Directive, legal options could be explored, although this is a complex and rare scenario. Prevention through clear, well-drafted documents and proactive communication is always the best approach.
• Aucamp Attorneys can help you draft Advance Directives that are clear, ethically informed, and designed to minimize potential for misinterpretation or challenges.

A Healthcare Proxy is a different kind of Advance Directive.  Instead of giving direct instructions about treatment refusal (like a Living Will), it:

• Appoints a Decision-Maker: You name a specific person (your "proxy") to make healthcare decisions for you if you become unable to do so yourself. This person could be a spouse, partner, family member, or trusted friend.
• Delegates Authority: You give your chosen proxy the legal authority to make healthcare decisions on your behalf.
• Broader Decision-Making Power: A Healthcare Proxy can make a wider range of healthcare decisions than just refusing treatment. They can consent to treatment, choose between options, and make overall care decisions based on their understanding of your values and best interests.
• Flexibility: Healthcare Proxies are more flexible as they allow for real-time decision-making by someone who can respond to changing medical situations that a static Living Will might not anticipate.
• In essence:
  • Living Will = You instruct: "If X happens, I refuse treatment Y."
  • Healthcare Proxy = You appoint: "I trust person Z to make healthcare decisions for me if I can't."

Yes, maintenance orders can be varied if there is a material change in circumstances for either party (e.g., significant change in income, health, or the needs of the child).  An application must be made to the Maintenance Court to vary an existing order.

Yes, child maintenance can include contributions towards private school fees and reasonable extracurricular activities if these are deemed to be in the child's best interest and affordable by the parents, considering their financial means and the child's accustomed standard of living.

Spousal maintenance is typically addressed as part of the divorce proceedings. You would claim for spousal maintenance as part of your divorce summons or pleadings.  You may also apply for interim maintenance while the divorce is pending. Aucamp Attorneys can guide you through this process within your divorce action.

No. Spousal maintenance is not automatic. It is considered on a case-by-case basis based on the needs of one spouse and the ability of the other spouse to pay.  It is more likely to be awarded if one spouse was financially dependent during the marriage.

Maintenance covers a broad range of "reasonable needs" including:

• For Children: Essential daily needs (food, clothing, housing, utilities), education (school fees, uniforms, extracurriculars, potentially tertiary), healthcare (medical, dental, optical, therapeutic), caregiving costs (childcare, after-school care), and a reasonable standard of living (transport, recreation, communication).
• For Spouses: Basic living expenses (housing, food, utilities), personal needs (clothing, personal care, medical, transport), and sometimes rehabilitation costs (education/training for self-sufficiency).

Courts consider numerous factors, including:

• Current and future income/assets of both spouses.
• Earning capacity of both spouses.
• Financial needs and obligations of both.
• Standard of living during the marriage.
• Duration of the marriage.
• Age and health of each spouse.

Yes. Even if a parent is unemployed or has a lower income, they generally still have a legal obligation to contribute towards child maintenance to the best of their ability. Courts will assess earning capacity and may impute an income if a parent is deliberately avoiding work. The amount will be determined based on individual circumstances and the other parent's financial contribution.

For child maintenance, both parents have a legal obligation to contribute financially, regardless of marital status or living arrangements. For spousal maintenance, the obligation may fall on one spouse to support the other after divorce, depending on factors like dependency and financial means, as determined by the court.

The first crucial step is to seek legal advice from an attorney specializing in deceased estates and maintenance claims, like Aucamp Attorneys.  We can assess your eligibility and guide you through the process.  Generally, the process involves:

• Consultation and Assessment: Discussing your situation with your attorney.
• Gathering Evidence:  Collecting documents to prove your relationship to the deceased, your financial needs, and the estate's details.
• Lodging a Claim:  Formally submitting a written claim to the executor of the deceased estate and the Master of the High Court.
• Negotiation and Settlement:  Attempting to reach a settlement agreement with the executor.
• Court Application (if necessary): If a settlement cannot be reached, your attorney will assist you in bringing a court application to enforce your claim.

There's no fixed amount. The amount of maintenance awarded will depend on your "reasonable maintenance needs" as assessed by the court or agreed upon in settlement, and the available assets in the deceased estate. The aim is to provide sufficient support, not to deplete the entire estate or provide excessive funds.

Yes, there are time limits, although they are less strict than some other types of claims against deceased estates.  It is generally advisable to lodge your claim as soon as possible after the deceased's death and the estate is reported.  While the Prescription Act might have a bearing, the courts are often lenient with maintenance claims, especially for children, recognizing the importance of their ongoing support. However, do not delay! Consult with an attorney promptly to avoid any potential issues with time limitations.

"Reasonable maintenance needs" is not about luxury, but about ensuring you have sufficient funds to cover your essential living expenses.  The court will consider various factors to determine what is reasonable in your situation, including:

• Your current and future income and earning capacity.
• Your financial needs and obligations.
• The size and nature of the deceased estate.
• The standard of living you enjoyed during the marriage or while dependent on the deceased.
• Your age and health.
   

A maintenance claim against a deceased estate is a legal right for certain dependents (primarily children and surviving spouses) to claim financial support from the assets of a deceased person's estate. This claim ensures that if the deceased was legally obligated to support you financially, this obligation doesn't automatically end with their death, especially if their will doesn't adequately provide for you.  It's about ensuring your essential needs are met.

Maintenance claims from children and surviving spouses have a high priority. If the estate is insolvent (debts exceed assets), creditor claims are paid first. However, after creditors, maintenance claims are generally paid before inheritances.  If there are competing maintenance claims (e.g., from a spouse and children), and insufficient funds to fully satisfy all, the claims may be reduced proportionally.
 

Yes!  Importantly, maintenance claims are independent of the will. Even if the will doesn't provide for you, or if it provides less than you need for reasonable maintenance, you may still have a valid claim. In fact, maintenance claims are often necessary precisely because the will is inadequate in this regard.
 

You will need to provide evidence to support both your relationship to the deceased and your financial needs. This might include:

• Proof of Identity and Relationship: Marriage certificate, birth certificate(s) of children, proof of life partnership (if applicable).
• Financial Information:  Your income statements, bank statements, list of expenses, proof of debts and obligations.
• Information about the Deceased Estate:  If possible, details about the assets and liabilities of the deceased estate (your attorney can assist in obtaining this).
• Medical Reports (if relevant): If you have health issues affecting your ability to work or meet your needs.
   

Maintenance payments are made directly from the deceased estate's assets.  If the estate has sufficient funds, your claim will be paid before most inheritances are distributed.

South African law primarily recognizes maintenance claims from:

• Children: This includes minor children and, under specific circumstances, adult children who are still financially dependent and unable to support themselves (e.g., due to disability or ongoing education).  This applies to children born in or out of wedlock, and adopted children.
• Surviving Spouses: Husbands, wives, and partners in permanent same-sex life partnerships who were married or in a life partnership with the deceased at the time of death and are unable to meet their reasonable maintenance needs from their own means.
   

Not necessarily. Many maintenance claims are settled through negotiation and agreement with the executor of the estate, often facilitated by legal representatives. Court proceedings are usually only required if a fair settlement cannot be reached through negotiation.  Aucamp Attorneys will strive to resolve your claim efficiently and amicably, but are fully prepared to represent you in court if litigation becomes necessary to protect your rights.

Yes!!!! 
On 30 November 2006, South Africa made world headlines when it became the fifth country in the world (and the first in Africa) to legalise marriage between two people of the same sex under the Civil Union Act.
The Civil Union Act is the law that now provides for legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity.

Yes, it is possible to change your marital regime through a process known as a postnuptial agreement. However, this requires the consent of both spouses and a court application and it is beneficial to discuss this and work through an attorney to manage this process. 

A marriage ceremony can take place almost anywhere, as long as the legal part of the ceremony is conducted or repeated in a church or other building used for religious services or in a public office (i.e. a Government office) or in a private dwelling house.

Basically, as long as the signing of the register/marriage certificate is done indoors.

Absoloutely!

You need to have a frank discussion with a lawyer who can assist not only with the legal requirements but to give both parties some important and realistic advice and checks about how marraige will affect your future - Obtaining good legal advice before you get married can save you an enormous amount of stress and expense down the line, not only in the unfortunate case of a divorce. Remember that your marital status can affect future issues like your financial liability for debts incurred, or the division of assets in the case of a divorce.

1. Register your intent to marry at a Department of Home Affairs office. This should be done at least three months before the wedding date. 

2. Pay the required fee for the marriage certificate and other administrative costs. 

3. Choose a marriage officer, either from the Department of Home Affairs or a religious institution, to officiate the ceremony. 

4. Schedule a date for the ceremony and obtain a marriage license.

5. Invite witnesses to the ceremony; you need at least two and they must be over 16 years old and understand the language used during the ceremony. 

6. After the ceremony, your marriage officer will submit the marriage register to the Department of Home Affairs, and you’ll receive your marriage certificate. 

7. Consulting with legal professionals or the relevant government authorities can help ensure that your wedding planning aligns with the legalities of marriage in South Africa.

In South Africa, if you are under 21 years of age, and have not been married before, you will need
written consent of both of your parents on form BI-32. If only one of your parents is alive, or if you have
a legal guardian, that person may sign the form BI-32. If your parents will not give consent for you to
marry, you can request consent from a Judge of the High Court. Consent by a judge is given only if
parental consent was unreasonably refused or there is sufficient evidence that getting marriage is in the
best interest of the minor.
If you are a male under the age of 18, or a female under the age of 15, you will need the consent of the
Minister of Home Affairs in addition to your parents' consent. If you manage to get married under the
age of 21 without consent, your parents can ask to have your marriage dissolved.

1. Civil Marriages
Governed by the Marriage Act of 1961.
A civil marriage is between a man and a woman and can include a religious ceremony.
The marriage officer will provide a free handwritten marriage certificate on the day of the ceremony.

2. Civil Unions
Recognized under the Civil Union Act of 2006.
Civil unions allow any two people, regardless of gender, to marry or enter into a civil partnership.
The legal rights and responsibilities are the same as a civil marriage under the Marriage Act.

3. Customary Marriages
Governed by the Recognition of Customary Marriages Act of 1998.
These marriages follow indigenous African customary laws and traditions.
To be legally valid, the marriage must be registered within three months of the ceremony.
Customary law may allow polygynous marriages (one man with multiple wives), but specific legal conditions must be met.

There are 2 main types in SA: 
* In Community of Property:
all assets and liabilities acquired before and during the marriage are considered to be joint property of the parties. The assets and liabilities are both placed in a hypothetical “pot”. This means that both spouses have equal ownership of assets, and similarly, are equally responsible for any liabilities, irrespective of which spouse incurred the debt. 
* Out of Community of Property:
If you do not want the default regime of Community of Property to apply, you must sign an antenuptial contract (ANC) before your wedding. An antenuptial contract is a legal agreement that allows you to decide how your assets and debts will be handled during and after the marriage. When you marry out of community of property, each spouse’s assets and debts remain separate. This protects you from being held responsible for your partner’s financial problems.

There are two options under this regime:
1. Out of Community of Property With the Accrual System: 
Each spouse keeps the assets they brought into the marriage (these must be listed in the antenuptial contract as the “starting value”).
Any assets gained during the marriage (accrual) will be shared equally if the marriage ends.
Upon divorce, the value of each spouse’s estate is calculated, and the spouse with the larger estate must pay the other spouse half of the difference.
It’s important to accurately list your starting assets in the antenuptial contract to ensure they are excluded from any future calculations.
2. Out of Community of Property Without the Accrual System:
If you don’t want to share any assets or liabilities, you must exclude the accrual system in your antenuptial contract.
Under this system, each spouse keeps their own assets and debts—both those brought into the marriage and those acquired during the marriage.
If the marriage ends, there is no sharing of assets or debts.

What do I need to do to get a marriage license?
1. Complete the BI-130 application form 
2. Get certified copies of your and your spouse's IDs 
3. Submit the form and any required documents to a Department of Home Affairs office **
4. Pay the processing fee 

** Other possible documents you might be required to submit: 
- A copy of any previous marriage certificate 
- A pre-paid, A4 size self-addressed special deliver envelope 
- A valid passport if one of the partners is a foreign national 
- A completed Form DHA-1763 (Declaration for the Purpose of Marriage) 
- A completed Form DHA-1766 (Civil Union register) 
- A completed Form DHA-1764 (Registration of a Civil Union) 
- A letter from your lawyer confirming your ANC (Ante Nuptial Contract) if marrying out of community of property

The length of the mediation process varies depending on the issues and the people involved. In some instances, mediation can take
several hours and in others, it may require a number of sessions over a few months.

Yes. When you reach an agreement in mediation and sign a settlement agreement, it becomes a legally binding contract.  For court-referred mediations, the agreement can even be made an order of court, further strengthening its enforceability.

Mediation through AUCAMP Attorneys offers numerous advantages:

• Control: You remain in control of the outcome.
• Confidentiality: All discussions are private and confidential.
• Cost-Effective: Significantly cheaper than litigation and often arbitration.
• Faster Resolution: Disputes are resolved much quicker than through court processes.
• Mutually Satisfying Outcomes: You create solutions tailored to your specific needs and interests.
• Relationship Preservation: Mediation is designed to preserve or manage relationships, crucial in business and personal disputes.
• Flexibility: The process is adaptable to your unique situation.
• Enforceable Agreements: Mediated settlement agreements are legally binding.

• If you have any particular questions about mediation, these can be addressed by the mediator in a premediation meeting.
• If your attorney is familiar with the mediation process, they may be able to address any concerns you may have.
• You will be given a chance to explain your position during the mediation process. It is possible that, in explaining your position,it will become possible to resolve some of the issues.
• It is important to remember that mediation requires a degree of flexibility from both parties.

Any party can suggest mediation at any time, provided that judgment has not been handed down on the matter. Even if  mediation does not result in a complete agreement on the issues, it can clarify the issues and help to shorten and simplify the court process.
In both the Magistrates and High Courts, where litigation is pending or it has already begun, you may at any stage before judgment agree to refer the matter for mediation. The prescribed notice must then be submitted to the court by one of you.
If the action has already been instituted, the proceedings will be suspended to accommodate the mediation proceedings.
You will need to agree on a mediator with the other side.
Parties to mediation have the right to be represented by an attorney, but it is by no means mandatory.
Where the parties to mediation reach agreement, the mediator will help the parties to draft a settlement agreement. Once finalised, the settlement agreement will be transmitted to the clerk of the court by the mediator. On receipt, the clerk of court will arrange for the matter to be recorded as resolved and, where necessary, for the agreement to be made an order of court by a magistrate.
 

Mediation is a process where a neutral third party (the mediator) helps people in a dispute to discuss their issues and try to reach an agreement. It's an alternative to resolving the dispute in court.
 

Mediation can take place in a neutral venue, at our AUCAMP Attorneys offices, or even online via video conferencing.  The location is flexible and agreed upon by the parties and the mediator.

Most disputes can be mediated, including contractual claims, motor vehicle accidents, neighbourhood disputes, and family disputes.

Typically, the parties to the dispute attend, along with their legal representatives if they choose to have them.  Anyone whose presence is crucial to reaching a resolution or whose consent is required for an agreement should be involved.  Witnesses are generally not involved in mediation.  We can advise on who should attend based on your specific situation.

Mediators are usually chosen from a panel of accredited mediators. They have undergone training and may specialize in certain types of disputes. Mediators can be lawyers or experts from other professions.
 

Yes, emotional distress can be a component of your claim if it is a direct result of the medical negligence.   
 

An attorney who specialises in medical malpractice claims can provide guidance on:

• the validity, or likely success, of your claim
• the party or parties against which to pursue your claim
• applicable limitations, including relevant prescription periods (time limits), on the claim
• details of medical experts who can provide appropriate medical testimony
• compiling other evidence for supporting the claim
• what will be involved in the claims process.

Determining damages in a medical negligence case is complex.  While there's no set formula, financial compensation requires quantifying your suffering.  Claims over R100,000 typically go to the High Court, potentially taking years to resolve, though settlements are often reached beforehand.  Don't rush to accept a low offer due to fear of litigation; our attorneys will protect your interests.

Damages are calculated in two parts:

1. Special Damages: These are easily quantifiable, covering past and future medical expenses, past and future lost earnings, and loss of support (if applicable). We consult experts to determine a fair settlement.
2. General Damages: These are more subjective, covering pain and suffering. The court considers similar cases and factors like life expectancy to determine an appropriate award.

Contact us for help calculating your damages.

The time limit (prescription period) for filing a claim is generally three years from the date of the incident or the date you became aware of the harm. However, there are exceptions and it's best to consult an attorney as soon as possible

A victim of medical malpractice can claim compensation in five areas, referred to as “heads of damage”:

1. past hospital and medical expenses
2. past loss of earnings
3. future hospital, medical and supplementary expenses
4. future loss of earnings and interference with earning capacity
5. general damages for pain, suffering and loss of amenity.

A different amount of compensation may be claimed in each of these areas.
In addition, a family member of a breadwinner who has died as a result of medical malpractice can claim funeral expenses and loss of support.

• A full explanation of the reason for seeking legal assistance.
• Detailed medical history with dates and details regarding the circumstances surrounding the medical negligence incident.
• Details regarding your health before the specific incident.
• Contact details of the medical professional and/or hospital or clinic where you have been treated.
• Full contact information of the medical professionals who have treated you after the incident.
• Proof of income.
• IRP5 documents of the last three years before the relevant medical negligence incident.
• Bank statements of the last three to five years.
• Medical aid contact details and your member number.
• Medical aid statements for the last three years (together with the medical slips), prior to and after the incident.
• Proof of being self-employed or if employed, proof of such.
• Dates that you have been absent from work, because of the injury sustained.

• Medical malpractice claims can be brought against individual medical practitioners – from GPs to anaesthetists, paediatricians, plastic surgeons, oncologists or other specialists.
• They can also be filed against hospitals and/or against the state.
• If negligence by nurses or other hospital staff results directly in harm to a patient, the hospital as a whole can be held vicariously liable.
• In the case of a private hospital, the body responsible for running the hospital can be sued for malpractice.
• In the case of a state hospital, the state itself (or the state representative for the relevant province) can be held liable.
• In South Africa, special requirements apply to personal injury claims against the state, including medical malpractice claims against state hospitals.

Historically, Muslim marriages solemnized only according to Islamic law were not recognized as valid marriages under South African civil law. However, there have been ongoing legal developments and efforts to provide recognition.
 

According to the provided search result, traditionally, Muslim marriages solemnized only under Islamic law could not be registered as valid marriages with the DHA. The state has not yet enacted legislation to fully recognize and regulate these marriages. The Registration of Muslim Marriages Bill aims to address this.

Without specific legislation, legal recognition of a Muslim divorce has been a complex issue. The proposed bill seeks to provide a framework for the legal dissolution of recognized Muslim marriages.
 

While not legally mandated by South African civil law (yet), a written Nikkah Nama is highly recommended as it documents the terms and conditions agreed upon by both parties, including the Mahr and any other specific agreements.
 

While Islamic law permits polygamy under certain conditions, South African civil law generally does not recognize polygamous marriages. The legal status of polygamous Muslim marriages in South Africa is complex and is also an area the proposed legislation might address.   
It's important to note that the legal landscape surrounding Muslim marriages in South Africa is evolving, particularly with the ongoing efforts to pass the Registration of Muslim Marriages Bill. For accurate and specific legal advice, it is always recommended to consult with legal professionals who specialize in family law and have expertise in Muslim personal law in South Africa. You can also seek guidance from religious leaders and Islamic organizations. Contact Aucamp Attorneys for a consultation. 
 

This is a proposed law in South Africa that aims to formally recognize Muslim marriages under the country's legal framework, allowing for registration with the Department of Home Affairs and providing legal certainty for Muslim couples. 

Due to the lack of full legal recognition in the past, spouses in Muslim marriages faced challenges regarding issues like inheritance, divorce, and the rights of children. Court decisions and the proposed legislation are working towards providing these protections based on constitutional principles.   

It all depends on the authority requesting the notarised document.

This is a crucial legal point:

Initial Personal Right: Upon registration, a GNB initially grants the creditor a personal right of security in terms of South African common law.
"Perfection" to Real Right: To achieve a stronger "real right" – which is fully enforceable against third parties, especially in insolvency – the creditor usually needs to "perfect" the security by taking possession of the bonded assets (through a legal process called attachment). Without perfection, the security is less robust, especially if the debtor becomes insolvent.

Yes, a Notary Public is an admitted attorney who has passed the practical examination in respect of the practice, functions and duties of a notary.
 

The requirements regarding how documents are to be signed may vary depending on the destination country. It may need to be signed only in front of a Notary Public or alternatively one or more witnesses may be required to be present in addition to the Notary Public. After being notarised by the Notary Public, the document may need to be apostilled, authenticated or legalised by the High Court of South Africa, Department of International Relations and Cooperation (DIRCO) or other government offices depending on the type of document and the destination country.
 

You'll need to bring the original document to be notarized, your valid identification document (ID, passport), and any other supporting documents that may be required

A notarised copy of a document is a true copy of the original document.
 

While both can witness signatures, a Notary Public has broader powers. They can notarize documents for use internationally, administer oaths for affidavits, and perform other specialized functions that a Commissioner of Oaths cannot. A Commissioner of Oaths primarily deals with affidavits and declarations for use within South Africa.

• Certified copy Copies of original documents can be certified by any Commissioner of Oaths in South Africa by endorsing the document with a Commissioner of Oaths stamp. This indicates that the document itself is a true copy of the original document.
• Notarised copy Copies of original documents can be authenticated by a Notary Public to prove that it is a true copy of the original by endorsing the document with a Notary Public stamp or seal.

The process of authentication of documents involves that the Notary Public verify the original document as well as the copy to ensure that the copy is a true copy of the original and that no amendments or adjustments were made thereto. Once the document has been notarised, the Notary Public issues a collation certificate.
 

Only a Notary Public, a specialized attorney appointed by the High Court, can notarize documents in South Africa.  

Neither Laminated or Certified documents are accepted by DIRCO.

The signing requirements for notarial documents depend on the destination country. In some cases, the document must be signed only in the presence of a Notary Public, while other countries may require additional witnesses to be present alongside the Notary Public.

Once the document has been notarised, further steps may be required for international recognition. These include
Apostille certification by the High Court of South Africa (for countries part of the Hague Apostille Convention).
Authentication or legalisation by the Department of International Relations and Cooperation (DIRCO) or other relevant government offices (for countries not part of the Hague Convention).

The specific process will depend on the type of document and its intended destination. To ensure compliance, consult with a Notary Public familiar with international requirements

A notarised copy of a document is a verified true copy of the original. Notarisation serves as a legal safeguard to prevent fraud and confirm the document's authenticity. It is commonly required for legal proceedings, international transactions, business agreements, immigration processes, and property transfers.

A certified translation is one that fulfills the requirements in the country in question, enabling it to be used in formal procedures, with the translator accepting responsibility for its accuracy. In South Africa these translators are registered at the local High Court. These translations can be Apostilled or Attested for use outside of South Africa.
 

A Notary Public is an attorney admitted and authorised by the High Court of South Africa to witness signatures, draft and attest contracts or statements, and authenticate the validity of certain documents.  

Notaries are held to a higher standard of care than regular attorneys due to the ethical nature of their work and their specialised expertise in drafting and legalising important documents. As a result, the role of a Notary Public is highly regarded and trusted in legal and official matters.

*Certified Copy A certified copy is a copy of an original document that is verified by a Commissioner of Oaths in South Africa. The Commissioner of Oaths stamps and endorses the copy to confirm that it is a true copy of the original document.  

*Notarised Copy A notarised copy is a copy of an original document that is authenticated by a Notary Public. The Notary Public verifies both the original and the copy to ensure it is a **true and accurate reproduction** with no alterations. The document is then endorsed with the Notary Public’s official stamp or seal.  

In addition, the Notary Public may issue a collation certificate, confirming the authenticity of the notarised copy. This process is often required for documents that will be used internationally or in formal legal proceedings.  

If you’re unsure which option is needed for your situation, consult a Notary Public for guidance.

Notaries in South Africa handle a variety of documents, but the most commonly notarised include

• Marriage, birth, and death certificates (copies notarised as true copies of the original)
• Divorce decrees and police clearance certificates
• Powers of attorney (signed in front of the Notary)
• Identity documents, passports, and driver’s licences
• Educational qualifications (degrees, transcripts, TEFL, and TESOL certificates)
• Travel consent letters for minors (signed in front of the Notary)
• Company incorporation documents and resolutions
• Commercial contracts and foreign property transfer documents
• Affidavits, statutory declarations, and wills
• Any document requiring notarisation as a true copy of the original

The process of legalising a document depends on its type and the country where it will be used. This may include further steps like Apostille certification or authentication.
For assistance with notarising or legalising your documents, contact us today for professional guidance.

The verification of documents can often be confusing, and a simple misunderstanding or procedural error can lead to costly delays—especially when dealing with court processes or embassy requirements. We simplify this process by providing expert advice and assistance, ensuring everything is handled correctly and efficiently.

As a Johannesburg-based law firm, we offer a wide range of specialised legal services to both individual and corporate clients. Our expertise spans areas such as family law, criminal law, civil litigation, corporate and commercial law, and intellectual property and trademark law.

We are committed to providing professional advice and representation in a friendly and welcoming environment where your needs come first.

Contact us today to arrange a consultation and let us assist you with your legal matters.

Yes, parental rights can be challenged or even terminated, but this is a serious legal step, only taken in specific circumstances, and always in the child's best interests.

• Challenge to Parental Rights: A parent's exercise of rights (e.g., contact) can be challenged if it's deemed not in the child's best interests (e.g., if contact is harmful to the child's emotional well-being).
• Termination/Removal of Parental Rights: In extreme cases, a court can terminate or remove a parent's rights altogether. This is usually only done in situations of:
• Abuse or neglect of the child.
• Abandonment of the child.
• Severe parental incapacity (e.g., chronic substance abuse, mental illness rendering them incapable of parenting).
• Applications to terminate parental rights are complex and require strong legal justification. Aucamp Attorneys can advise you on the grounds for challenging or terminating parental rights and represent you in such proceedings, whether you are seeking to protect your child or are facing such a challenge yourself.

Generally, no.  Grandparents do not automatically acquire parental rights and responsibilities simply by virtue of being grandparents.  However, South African law recognizes the important role grandparents often play in a child's life.
Grandparents can apply to court for:

• Contact Rights: To have regular contact with their grandchildren, especially if denied contact by parents. The court will grant contact if it is in the child's best interests.
• Care or Guardianship (in specific circumstances): In exceptional situations, such as the death or incapacity of parents, or if parents are deemed unfit, grandparents can apply to be granted care or even guardianship of their grandchildren, again, always based on the child's best interests.
• Aucamp Attorneys can assist grandparents in applying for contact, care, or guardianship rights and advocate for their meaningful involvement in their grandchildren's lives, where it is beneficial to the children.

Separation or divorce doesn't automatically terminate parental rights.  Both parents generally retain their parental rights and responsibilities.  However, the exercise of these rights, particularly care and contact arrangements, needs to be restructured.
Typically, a Parenting Plan (either by agreement or court order) is established, outlining:

• Primary Residence (Care): Where the child will primarily live.
• Contact Arrangements: Schedules for the non-primary caregiver parent to spend time with the child (weekends, holidays, etc.).
• Guardianship: Joint or sole guardianship (though joint guardianship is generally favored, meaning both parents continue to make major decisions together).
• Maintenance Contributions: Financial support arrangements for the child.
• Aucamp Inc.specializes in negotiating and drafting Parenting Plans that prioritize the child's best interests while protecting our clients' parental rights during and after separation/divorce.

Not automatically, but South African law protects the rights of unmarried fathers. An unmarried father automatically acquires full parental rights and responsibilities if he meets any of the following conditions:

• Living Together at Birth: He was living with the mother in a permanent life-partnership when the child was born.
• Consent to Rights & Best Interests: He consents to acquire full parental rights and responsibilities and it is in the child's best interests to grant him these rights.
• Contributing to Upbringing & Best Interests: He contributes or has attempted to contribute in good faith to the child's upbringing and maintenance for a reasonable period and it is in the child's best interests.
• Married Later: If the unmarried parents marry each other after the child's birth, the father automatically gains full rights from the date of marriage.
• If an unmarried father does not automatically acquire rights, he can apply to court to gain Parental Rights and Responsibilities. Aucamp Attorneys has extensive experience assisting unmarried fathers in establishing their parental rights.

The best interests of the child is the paramount principle in all matters concerning children in South African law, as enshrined in the Constitution and the Children's Act. It means that when making any decision about a child (including parental rights, care, contact, guardianship, etc.), the child's well-being, safety, and overall best interests must be the primary consideration.
This is a flexible concept, assessed on a case-by-case basis, taking into account factors such as:

• The child's age and maturity.
• The child's wishes and feelings (depending on age and maturity).
• The child's physical and emotional needs.
• The child's relationship with each parent.
• Each parent's ability to provide care and support.
• The need for the child to be protected from harm.

Aucamp Attorneys can help you understand how the "best interests of the child" principle applies to your specific situation and advocate for outcomes that prioritize your child's well-being.

In South Africa, "Parental Rights and Responsibilities" is the legal term for the comprehensive set of duties and powers a parent has in respect of their child.  It's more than just rights; it's a bundle of responsibilities and entitlements designed to ensure a child's well-being. These include:

• Care: Providing for the child's daily needs (housing, food, clothing, healthcare, etc.).
• Contact: Maintaining a relationship with the child, including communication and visitation.
• Guardianship: Acting as the legal guardian, making major decisions about the child's life (education, religion, medical treatment, etc.).
• Maintenance: Financially supporting the child's upbringing.

Generally, in South Africa:

• Mothers: Mothers automatically acquire full parental rights and responsibilities from the moment of a child's birth.
• Married Fathers: Fathers married to the mother at the time of the child's birth, or at any time thereafter, automatically acquire full parental rights and responsibilities.

The situation is different for unmarried fathers, which we'll address when you contact Aucamp Inc. who can clarify your specific parental rights based on your marital status and circumstances.

Generally, yes, levies and voting rights are directly linked to the PQ. However, there are some exceptions.  The Sectional Titles Act allows for rules to be made (in terms of section 32(4)) that can adjust the levy contributions or voting values under specific circumstances and with proper procedure.  However, these rules are not common, and in most schemes, PQ remains the primary determinant of levies and voting.
 

Yes, Participation Quotas can change, but only through a formal legal process.  If a section is extended or altered in a way that changes its floor area, the sectional title plan must be amended and re-registered. This will result in a recalculation of the PQ schedule, affecting all sections in the scheme.  Changes become effective upon registration of the amended sectional plan.
 

It depends. If your garage or storeroom is registered as a separate section on the sectional title plan, it will have its own Participation Quota calculated separately based on its floor area. If your garage or storeroom is not a separate section (i.e., it's part of your main residential section or common property), its area will be considered within the PQ calculation of the main section it's attached to.  You need to check the sectional title plan to determine if your garage/storeroom is a separate section.

The Participation Quota is primarily based on the floor area of a section.  The formula is: (Floor area of your section) / (Total floor area of all sections in the scheme) x 100.  For example, if your section is 100 square meters and the total floor area of all sections in the scheme is 10,000 square meters, your PQ would be 1%.

Yes, understanding the PQ is crucial for potential buyers. It will directly impact your ongoing financial obligations (levies) and your influence within the body corporate (voting rights).  Always review the sectional title plan and PQ schedule before purchasing a sectional title property to fully understand these implications.
 

Section 32(5) of the relevant legislation states that the PQs on the plans are deemed to be correct until proven otherwise.  Challenging a PQ on the sectional plan requires demonstrating to the court that it is indeed incorrect, which can be a complex legal process.  If you believe there is a significant error, you should consult with attorneys like Aucamp Attorneys to assess your options and the process for potentially rectifying it.
 

You should consider consulting Aucamp Attorneys regarding Participation Quotas in the following situations:

• Disputes about PQ calculations or accuracy: If you believe the PQ for your section or the scheme is incorrect.
• Section Extensions or Alterations: If you are planning alterations that might affect the PQ schedule.
• Body Corporate Disputes related to Levies or Voting: If you have disputes with the body corporate where PQ is a central factor.
• Before purchasing a sectional title property: To ensure you understand the PQ and its implications.
• Generally, for any legal advice related to sectional title scheme management and your rights and responsibilities as a sectional title owner.
• Ensure you fully understand your rights and obligations as a sectional title owner – Contact Aucamp Attorneys for expert legal guidance on Participation Quotas and all sectional title matters.

The official Participation Quotas for all sections in a sectional title scheme are listed on the sectional title plans. These plans are registered at the Deeds Office and are the legally definitive source for PQ information. You can obtain a copy of the sectional title plan from the Deeds Office or through a deeds search service, or often the body corporate or managing agent will have a copy.
 

The PQ is significant because it directly affects:

• Levies: Your monthly levy contributions to the body corporate are usually calculated proportionally based on your PQ. A higher PQ generally means higher levies.
• Voting Rights: Your voting power in body corporate meetings is determined by your PQ. Owners with higher PQs have a larger voting weight.
• Share of Common Property: The PQ represents your undivided share of ownership in the scheme's common property areas.
• Liability for Joint Debts: In some circumstances, your liability for the body corporate's joint debts might be influenced by your PQ.
   

While the parents typically initiate the process, the court's primary concern is the child's best interests. If the child is mature enough and it's deemed to be in their best interest, the court might consider their request for a paternity test.

While a divorce settlement agreement primarily deals with the current situation, it can include clauses about how future disputes, including potential challenges to paternity (though less common after a formal determination), will be handled. However, the child's best interests will always be the paramount consideration.   

Yes, you have the right to refuse. However, the court must warn you that your refusal can negatively impact your credibility. If there is other evidence suggesting you are the father, the court may take your refusal into account and make a presumption of biological fatherhood.

Either party can request the court to order paternity testing. The court will typically order DNA testing, which is highly accurate. Both the mother and the alleged father will need to provide samples. The tests are usually conducted by accredited laboratories.

 

You should raise your concerns with your attorney. The court may order paternity testing to establish the biological father. This is important for determining maintenance obligations and the child's legal rights.

Yes, a paternity dispute can potentially delay the finalization of the divorce as it is a crucial issue that needs to be resolved before matters like child maintenance and care arrangements can be finalized.
 

Yes, especially if there's any doubt or if the father wants to formally assert his rights and responsibilities. Even if paternity is not in question, it's often formally recorded in the divorce settlement agreement to avoid future disputes regarding care, contact, and maintenance.

South African law recognizes the concept of a "de facto" parent. If your husband has acted as the child's father and there's been a parent-child relationship, he may still have rights and obligations regarding the child, even if he's not biologically related. The court will prioritize the child's best interests. It's crucial to address this specifically in the divorce settlement agreement.  

You have the right to request a paternity test to determine if you are the biological father. You should inform your attorney of your doubts, and they can guide you through the process of requesting a test through the court.

Absolutely. It is crucial to have an open and honest discussion with your attorney about any concerns or questions you have regarding the paternity of your children during divorce proceedings. They can provide you with specific legal advice and guide you through the necessary steps

If the test confirms you are not the biological father, you will generally not be held legally responsible for child maintenance. Your rights and obligations as a parent in this context will depend on the specific circumstances and whether a parent-child relationship was established. This should be clearly addressed in the divorce settlement.
 

If the test confirms your paternity, you will have legal rights and responsibilities towards the child, including the obligation to pay child maintenance and the right to seek care and contact (custody and visitation).  
 

Generally, yes. Once paternity is established, the biological father has a legal obligation to contribute towards the child's maintenance, regardless of his level of involvement in the child's life. The specific amount will be determined based on his financial means and the child's needs.   
 

The Children's Act emphasizes the best interests of the child in all matters concerning them, including paternity disputes during divorce. It outlines parental responsibilities and rights and provides the legal framework for determining paternity and ensuring the child's well-being.  
 

The court will usually determine who is responsible for the costs of the paternity test. Often, the party requesting the test will initially bear the cost, but this can be factored into the final divorce settlement.

No, the Road Accident Fund (RAF) only compensates for injuries to drivers, passengers, or pedestrians caused by someone else’s negligence. It does not cover vehicle damage or personal belongings, such as clothes or watches, damaged in the accident.
If your vehicle or property was damaged, you must
* Claim directly from the negligent driver responsible for the accident, or
* Claim from the driver’s private insurance (if they are insured).
If you have your own insurance—like comprehensive or third-party cover—you can claim for your losses from your insurance company. If you cause the accident, your insurer can also pay out for damages caused to others.
Since not all vehicles on the road are insured, it’s important to consider purchasing insurance to protect yourself in such situations.

You may have a claim against the police if their actions have caused you harm, such as unlawful arrest, assault, or other misconduct. Instead of filing a complaint, many people are choosing to sue the police for damages in court for the following reasons
* If successful, you receive financial compensation.
* It can discourage similar misconduct from happening again.
* Complaints against the police often result in little to no action.
In 2012, it was revealed in Parliament that the SAPS contingent liability had quadrupled to R20 billion, largely due to civil claims. Many believe the police are defending cases they cannot win and unnecessarily contesting matters that could be settled out of court.
If you believe you have a valid claim against the police, seeking legal advice is essential to protect your rights and pursue fair compensation.

To successfully claim from the Road Accident Fund, it’s crucial to gather all the necessary supporting documents and complete the official RAF forms correctly.

Documents Required
*Police report and case number
*Personal details and those of other parties involved
*Medical reports proving injuries sustained
*Expert reports (legal/medical) and witness statements
*Photos and reports of vehicle damage or other accident-related evidence

Key RAF Forms

1. RAF 1 – Prescribed Claim Form
   Provides details of the claimant, accident, vehicles involved, and the compensation amounts being claimed. It must be accompanied by
   • A medical report from the treating doctor
   • Affidavits detailing the accident, witness statements, police reports, and medical records
2. RAF 3 – Accident Report Form
   All drivers involved must complete this form, providing details of the accident and witness information as required by the RAF.
3. RAF 4 – Serious Injury Assessment Report
   For claims involving general damages, the RAF 4 form must prove that the injury is serious enough to warrant compensation for pain and suffering.
    

Submitting Your Claim
Once you have all the required documents and completed the forms, submit hard copies to the RAF. Faxed submissions must also be followed by hard copies, as emailed documents are not accepted.

The RAF will review your claim to determine its validity, assess the merits, and calculate damages. Ensure all forms are correctly completed and keep copies of all submissions for your records. Contact our offices and we will assist you with this claim from beginning to end

If you are injured due to negligence in a shopping centre, liability doesn’t fall only on the store or shopping centre owners. The legal duty of care can extend to store tenants, business owners, property managers, mall operators, cleaning companies, merchandisers, and centre management. Each party is responsible for ensuring a safe environment for customers.

To succeed in a delictual claim, your lawyer must prove the following
* The action of the other person was wrongful because it caused harm to you or your property.
* The person acted negligently or intentionally (was at fault).
* You suffered a loss that can be given a monetary value (referred to as damages).
* The monetary loss was directly caused by the actions of the negligent person.
If these elements are proven, your case will have a strong foundation for success. For assistance with your claim, contact us for expert legal advice

You may have a medical malpractice claim if  

1. The doctor did not obtain consent from a parent or guardian, making their actions unlawful. This applies regardless of the treatment outcome unless it was an emergency under the doctrine of necessity.  
2. The doctor provided treatment with consent but failed to exercise reasonable care, causing you harm. To succeed, you must prove that the doctor’s lack of care directly led to your injury.  

Not every mistake is considered negligence. The law acknowledges that even a careful doctor may make an error in judgment, administer incorrect treatment, or perform an operation that results in harm. In such cases, no claim can be made.  

You can also claim damages if a doctor, nurse, or hospital staff member causes injury through **negligence**. Hospitals can be held liable for employees' wrongful actions, provided they were acting within the scope of their employment at the time. Many doctors carry malpractice insurance to cover such claims.  

If you believe you have a case for medical malpractice, seek professional legal advice to understand your rights and options.

Yes, complexes can and often do have specific pet Conduct Rules or Bylaws. These rules must be reasonable and typically address aspects like:
*   Pet Size/Weight Limits  Reasonable size or weight restrictions for dogs, for example, are often permissible.
*   Leashing Requirements  Requiring pets to be leashed in common areas.
*   "Nuisance" Control Rules about noise levels, hygiene, waste disposal, and preventing disturbances to other residents.
*   Number of Pets Limits on the number of pets allowed per section might be considered reasonable.
*   Registration and Identification Requirements for pet registration with the Body Corporate.

These rules should be clearly written, consistently applied, and genuinely aimed at promoting harmonious complex living.  Overly restrictive or arbitrary rules may be challenged.
 

Generally, no, a Body Corporate cannot impose a blanket ban on pets in a sectional title scheme.  Prescribed Conduct Rule 1 (PCR 1) of the Sectional Title Schemes Management Act (STSMA) states that residents require Trustee consent to keep pets, but importantly, this consent **cannot be unreasonably withheld.**  Complexes can implement reasonable pet bylaws and rules, but outright bans are typically considered unreasonable and unenforceable.

The process usually involves:

1.  Reviewing the Complex's Conduct Rules/Bylaws: Understand the specific pet policies of your complex. These rules should be readily available from the Body Corporate or managing agent.
2.  Submitting a Written Application to the Trustees:  Apply to the Body Corporate Trustees in writing, providing details about your pet (type, breed, size, temperament, etc.) and how you will ensure it complies with complex rules and doesn't cause nuisance.
3.  Provide Supporting Information: Include details that demonstrate you are a responsible pet owner (e.g., vaccination records, training certificates, details of walks/exercise plans).

A: Trustees can only refuse pet permission on reasonable grounds.  "Unreasonable withholding" is legally prohibited.  Reasonable grounds for refusal might include:

• Legitimate Nuisance If the pet is likely to cause a genuine nuisance to other residents (e.g., excessive barking, aggressive behavior, hygiene issues demonstrably impacting others).
• Violation of Specific, Reasonable Bylaws If your pet would violate clearly defined and reasonable pet bylaws of the complex (e.g., exceeding a reasonable size limit if such a bylaw exists and is justifiable).
• Overcrowding/Unsuitability In very specific circumstances, if the section is demonstrably too small or unsuitable for the specific type of pet in a way that would inevitably cause animal welfare concerns or nuisance within a complex living environment.

Grounds for refusal are likely to be considered unreasonable if they are:

• Vague or Subjective Refusals based on general dislikes of certain breeds or unfounded fears without specific evidence of potential nuisance.
• Discriminatory  Refusing permission based on the type of animal in principle if it's a common domestic pet and the owner can demonstrate responsible ownership.
• Retaliatory or Arbitrary  Refusals that appear to be personal vendettas or without any clear justification related to pet nuisance or bylaw violation.
• Based on Blanket Policies  Trying to enforce a de facto blanket ban through unreasonable application of rules or overly strict interpretations.

If you are experiencing nuisance from another resident's pet, you should:

1.  Document the Nuisance  Keep a record of dates, times, nature of the nuisance (barking, aggression, hygiene issues, etc.), and any impact on you or other residents.
2.  Report to the Managing Agent or Trustees Formally report the issue in writing to the Body Corporate or managing agent, providing your documented evidence.
3.  Request Action from the Body Corporate The Body Corporate is responsible for enforcing Conduct Rules and ensuring residents' peaceful enjoyment of their units. They should investigate and take reasonable steps to address the nuisance (e.g., issue warnings, mediate, and in extreme cases, potentially require pet removal if bylaws are consistently violated and nuisance persists despite other interventions).
 

Yes, a Postnuptial Agreement can be specifically structured to protect future inheritances. Similar to an Antenuptial Contract, you can include clauses in your Postnuptial Agreement that stipulate that any assets inherited by either spouse after the agreement is registered will remain their separate property and will not form part of a joint estate. This provides a legal mechanism to safeguard inherited wealth.

It is highly unlikely and strongly advised against attempting to draft and enter into a Postnuptial Agreement without legal assistance. The process requires a formal application to the High Court, which involves specific legal procedures and documentation. Once the court grants permission, the agreement itself is a specialized legal document that must be correctly drafted and executed before a Notary Public. Finally, the agreement needs to be registered with the Registrar of Deeds. To ensure the validity and enforceability of your Postnuptial Agreement, it is crucial to seek the expertise of experienced attorneys like those at Aucamp Attorneys.
 

The timeframe for registering a Postnuptial Contract can vary, but typically it takes approximately 3 to 4 months to obtain the necessary High Court order. Following the granting of the order, the registration of the Postnuptial Contract with the Deeds Office usually takes an additional 7 to 14 working days. Please note that these are estimated timelines and can be influenced by the specific circumstances of your application and the court's schedule.

Yes, a Postnuptial Agreement is legally binding in South Africa once the High Court has issued an order stating that your existing matrimonial property system is no longer applicable and that the Postnuptial Agreement will govern your future financial affairs. Without this court order, the agreement is not legally enforceable.

Yes, it is absolutely possible to change your matrimonial property regime after marriage in South Africa. While you cannot execute an Antenuptial Contract after the wedding, Section 21(1) of the Matrimonial Property Act specifically allows couples to apply to the High Court for permission to register a Postnuptial Contract. This enables you to change your marital property regime from "in community of property" to "out of community of property" (with or without accrual), provided you obtain the necessary approval from the High Court.

Generally, no, it is not too late to enter into a Postnuptial Agreement. If you are already married and wish to change your matrimonial property regime, a Postnuptial Agreement is the legal avenue to do so. While it's important to understand that the process is more involved and expensive than a Prenuptial Agreement (as it requires High Court approval), it remains a viable option to adjust your financial arrangements after marriage.

Couples pursue Postnuptial Contracts for a variety of important reasons, including:

• Business and Financial Independence: Gaining the freedom to trade and conduct business without automatically exposing your spouse to business risks and liabilities.
• Asset Protection: Safeguarding personal assets, especially if one spouse has a higher risk profile due to their profession or business ventures. This can also protect assets in the event of a spouse's sequestration.
• Estate and Tax Planning: Enabling more effective and tailored estate and tax planning strategies, which can be limited when married in community of property.
• Resolving Marital Friction: Addressing financial disagreements or differing approaches to financial management within the marriage.
• Rectifying Unregistered Antenuptial Contracts: Formalizing the intended marital property regime if an Antenuptial Contract was signed before marriage but not registered on time.
• Defining Separate Assets: Clearly defining and protecting assets that one or both spouses owned prior to the marriage or acquired separately during the marriage.
• Independent Financial Control: Allowing each spouse to retain control over their individual assets, build their own estate, and manage their own debts.
• Avoiding Joint Liability: Ensuring that you are not held liable for debts incurred by your spouse after the registration of the Postnuptial Contract.

A Postnuptial Contract primarily defines the matrimonial property regime that will govern your marriage moving forward. This includes specifying whether your marriage will be out of community of property with or without the accrual system. Additionally, the contract can include any other contractual clauses that are legally permissible in South Africa. This might involve specific agreements regarding the division of assets acquired during the marriage, financial responsibilities, or other financial arrangements, as long as they are not contrary to the law.

While both Antenuptial (Prenuptial) and Postnuptial Agreements serve to define your marital property regime, an Antenuptial Agreement is generally faster, more affordable, and simpler to implement. This is because it is executed before a Notary Public before the marriage without requiring court intervention.
However, if you are already married and didn't have an Antenuptial Agreement, a Postnuptial Agreement is a valuable tool to address potential risks and inconveniences associated with being married in community of property. Although it involves a more complex and costly process due to the necessity of obtaining High Court approval, it can ultimately provide significant benefits and peace of mind.
 

The primary reason for the higher cost of a Postnuptial Contract compared to an Antenuptial Contract is the legal requirement for High Court approval. Unlike Antenuptial Contracts, which are executed before a Notary Public prior to marriage, registering a Postnuptial Contract involves a more complex legal process. This includes:

• Drafting and filing a formal motion application with the High Court.
• Serving notices on various relevant parties, such as the Registrar of Deeds.
• Placing advertisements in the Government Gazette and local newspapers.
• Potentially briefing an advocate to present your case to the court.
• Attending a hearing and obtaining a court order granting permission for the registration.
• Only after receiving this court order can you and your spouse appear before a Notary Public to sign the Postnuptial Contract, which is then registered with the Deeds Office. The added legal and administrative steps involved in the High Court application contribute to the increased cost.
   

Yes, they are frequently included in lease agreements, giving tenants the first opportunity to buy the property they are renting if the landlord decides to sell.

The Constitutional Court (Mokone case) suggested that if a lease is renewed on the "same terms and conditions," ancillary terms like a pre-emptive right are likely renewed too, even if not explicitly mentioned in the renewal. However, to avoid any doubt, it is best practice to explicitly state in any lease extension whether the pre-emptive right continues to apply.
 

While the Constitutional Court (Mokone v Tassos Properties) indicated that the creation of the right itself might not always need the strict written formalities required for a sale agreement under the Alienation of Land Act, it is highly advisable to have it clearly documented in writing and signed. Relying on verbal agreements invites uncertainty and potential disputes. A written clause provides essential clarity and proof of intention. Note that if the right is exercised, the resulting sale agreement must be in writing and signed.

A pre-emptive right can terminate in several ways:

• The holder formally waives the right.
• The holder declines to exercise the right when offered the property.
• The parties mutually agree to cancel it (which may require a notarial deed if it's a registered real right).   
• Merger occurs when the holder buys the property.
• Death of the holder or grantor (if it's a personal right).
• Compulsory sale of the property (e.g., insolvency, execution - usually only if it's a personal right).
• Expiry of a time limit specified in the agreement.

The key difference lies in who initiates the sale.
Pre-emptive Right: Only becomes active when the owner decides to sell. The holder then gets the first chance to match the offer the owner is willing to accept from a third party. The holder cannot force the owner to sell.
Option to Purchase: This is a binding offer from the owner to sell to the holder at agreed terms within a specific period. The holder can choose to exercise the option and force the owner to sell, whether the owner still wants to or not.

Usually, the holder must match the terms and conditions, including the price, of the offer made by the third party that the owner is prepared to accept. The principle is often referred to as the 'Oryx mechanism', where the holder steps into the shoes of the third-party purchaser.   
 

If a valid pre-emptive right is breached, the holder has potential remedies, including:

• Applying for an interdict to prevent the transfer to the third party.
• Seeking specific performance (asking the court to order the owner to honour the right, often by allowing the holder to 'step into the shoes' of the third-party buyer via the Oryx mechanism).   
• Claiming damages suffered as a result of the breach. The success of these remedies can depend on various factors, including whether the third-party buyer knew about the pre-emptive right (doctrine of notice).   
   

Generally, the sale of a package including the property subject to the pre-emptive right will trigger the right. However, the specific wording of your agreement is crucial. Recent case law (Plattekloof RMS Boerdery v Dahlia Investment Holdings) highlights this. Depending on the wording, you might have to match the offer for the entire package, or potentially only for the specific portion covered by your right (which might require a mechanism in the agreement to determine the value of that portion). Clear drafting is essential to avoid disputes.

A pre-emptive right gives a specific person (the holder) the first opportunity to buy a property if the owner (the grantor) decides to sell it. The owner must offer the property to the holder before they can sell it to anyone else.

Typically, it's triggered when the owner decides they want to sell the property or receives a bona fide (genuine) offer from a third party that they are willing to accept. The exact trigger event should be clearly defined in the agreement creating the right. Attempting to structure a transaction, like an unusually long lease, solely to avoid the right might be legally challenged.
 

For the Holder: It provides a valuable opportunity to acquire a property you desire (especially if you are a tenant), offers some security against the property being sold unexpectedly, and gives control over who might become the new owner/neighbour/landlord.
For the Grantor: It can provide a potential ready-made buyer, possibly simplifying the sale process and reducing marketing costs.

It depends on how the right was created:

• Personal Right: If drafted as a purely personal right between the original parties, it usually lapses upon the death of either party or upon a compulsory sale (like insolvency) and does not bind future owners.
• Real Right: If the right is specifically worded to bind the owner and their successors-in-title and is registered against the property's title deed in the Deeds Office, it becomes a real right that binds subsequent owners.

Aucamp Attorneys provides comprehensive legal services for property owners to ensure lawful and compliant evictions:

1. Expert Legal Advice: We provide clear guidance on PIE Act procedures and your legal obligations.
2. Proper Notice Preparation and Service: We ensure all required notices (Section 4(2) notices, etc.) are legally sound and correctly served.
3. Court Application Preparation: We expertly draft and file all necessary court documents for the eviction application.
4. Court Representation: We provide skilled legal representation in court to present your case effectively and navigate any legal challenges.
5. Sheriff Liaison: We assist with instructing and managing the Sheriff of the Court for lawful eviction execution.
6. Risk Mitigation: We help you avoid illegal eviction pitfalls, protecting you from potential criminal charges and civil lawsuits.

If you are facing eviction, Aucamp Attorneys can

1. Assess the legality of the eviction process: We will review the landlord's actions to determine if they are following the law and if your rights are being respected.
2. Advise you on your rights: We will explain your rights under the PIE Act and ESTA (if applicable).
3. Provide legal representation: We can represent you in court to defend against an unlawful or unfair eviction, ensuring your voice is heard.
4. Apply for urgent court orders: If you have been illegally evicted, we can take immediate legal action to try and restore your occupation.
5. Negotiate with the landlord: We can attempt to negotiate a fair resolution with the landlord to avoid or manage the eviction process.

You cannot be evicted without a court order
According to the South African Constitution, no person can be removed from their home without a court order. If your landlord is evicting you, they have to apply for an eviction order and have it approved in writing by the court.

The PIE Act protects unlawful occupiers from being evicted unlawfully. It does not prevent lawful evictions, but it mandates that all evictions, even of unlawful occupiers, must follow a fair and legal court process and be "just and equitable."  Certain occupiers, like those protected by ESTA (Extension of Security of Tenure Act), have additional rights and protections, particularly in rural areas.

You can oppose your eviction even if you have not paid rent
Even if a tenant is in the “wrong” and is an unlawful occupier they can still oppose their eviction. In South Africa, our laws are meant to ensure that no one is evicted into homelessness. To evict you must be an unlawful occupier AND the court must find it just and equitable to evict you.

Receiving a Notice to Vacate does NOT mean you are evicted
A Notice to Vacate is a conversation, letter, email, SMS or Whatsapp message from your landlord (or their lawyer) in which they state that they have cancelled your lease and that you must vacate the property by a certain date.

Landlords who engage in illegal evictions face serious legal consequences:

• Criminal Charges: Unlawful eviction is a criminal offense under the PIE Act, and landlords can be fined or imprisoned for up to two years.
• Civil Lawsuits for Damages: Unlawfully evicted occupiers can sue the landlord for civil damages, including compensation for emotional distress, wrongful dispossession, and financial losses.
• Urgent Court Orders (Spoliation): Courts can issue urgent orders forcing landlords to immediately restore possession to unlawfully evicted occupiers, often with cost implications for the landlord.

If you believe your landlord is attempting to evict you illegally, you should take immediate action:

• Do not resist physically, but clearly state your objection: Inform your landlord (preferably in writing if safe to do so) that they are acting illegally and that you are aware of your rights under the PIE Act.
• Gather evidence: Document everything – dates, times, actions taken by the landlord, photos, videos, and any witnesses.
• Seek urgent legal assistance immediately: Contact Aucamp Attorneys or another attorney specializing in eviction law. Time is of the essence in preventing an illegal eviction from progressing.
• Apply for an Urgent Court Interdict/Spoliation Order: Your attorney can assist you in bringing an urgent application to court to stop the illegal eviction and potentially force the landlord to restore your occupation if you have been unlawfully evicted.
• Report the Illegal Eviction: You can report the illegal eviction to the South African Police Service (SAPS) as it is a criminal offense.

Yes. Spouses can enter into a settlement agreement (also called a consent paper) that outlines how they will divide their assets and liabilities, regardless of their marital regime. This agreement becomes legally binding once made an order of the court.   
 

It is highly recommended to consult with a family law attorney. They can advise you on your rights based on your marital regime, help you negotiate a fair settlement, and represent you in court if necessary. Navigating property division during divorce can be complex, and legal expertise is invaluable

It depends on your marital regime. In community of property, assets owned before the marriage become part of the joint estate and are subject to equal division. In marriages out of community of property without accrual, pre-marital assets remain separate. In marriages with accrual, the value of pre-marital assets is considered when calculating the accrual. 

The accrual is calculated by determining the net value of each spouse's estate at the start of the marriage (as declared in the ANC or a separate statement, adjusted for inflation) and subtracting it from the net value of their estate at the time of divorce. The spouse with the larger accrual then shares half of the difference with the other spouse.   

Generally, yes. In a marriage in community of property, all assets and liabilities are part of a joint estate and are typically divided equally upon divorce. However, a court can order forfeiture of benefits in certain circumstances.  

No. In this regime, each spouse retains their own separate estate, including assets and liabilities acquired before and during the marriage. There is no automatic sharing of assets upon divorce.  

Yes, debts are also considered in the division of assets. In community of property, joint debts are usually shared equally. In marriages out of community of property, each spouse is generally responsible for their own debts, unless they agreed otherwise.   

If you cannot reach a settlement, the matter will likely proceed to court. The judge will then make a decision on the division of assets based on the applicable marital regime and the evidence presented. In community of property marriages where agreement isn't reached, the court may appoint a liquidator to divide the joint estate.   

The division of your property depends on the marital regime under which you were married. The three main regimes are: in community of property, out of community of property without accrual, and out of community of property with accrual, each having different implications for asset division.   
 

The treatment of the family home depends on the marital regime and how it is owned. In community of property, it's part of the joint estate and will need to be divided, either through sale and division of proceeds or one spouse buying the other out. In out-of-community marriages, ownership will determine who retains the property, although accrual might still play a role.   

The accrual system in out-of-community marriages aims to address this by sharing the growth of the estates. For marriages out of community of property before 1984, the "redistribution of assets" provision in the Divorce Act can also provide relief to the financially disadvantaged spouse.   

An ANC is a legal agreement entered into by a couple before their marriage. It allows them to choose a marital regime other than the default (in community of property) and can specify how their assets will be handled during the marriage and in the event of a divorce.   

The accrual system applies to marriages out of community of property where it is specifically included in the ANC. It means that while each spouse maintains a separate estate during the marriage, the net growth (accrual) of their respective estates from the beginning of the marriage to the date of divorce is shared.   
 

If you get married without signing an antenuptial contract (ANC) before your marriage, the default marital regime is marriage in community of property.
 

When purchasing a townhouse in South Africa, it's common for the property to fall under a sectional title scheme. In such arrangements, you own your specific unit and share ownership of common areas with other residents. However, some townhouses are sold as freehold properties, where you own both the unit and the land it occupies. It's essential to verify the property's title type—sectional or freehold—before proceeding with the purchase to understand your ownership rights and responsibilities.

Levies are calculated based on the estimated costs of running the sectional title scheme for the upcoming financial year. The trustees prepare budgets for both the administrative fund (day-to-day expenses) and the reserve fund (long-term maintenance). These budgets are presented to owners for approval at the Annual General Meeting (AGM). Owners may request adjustments before final approval is granted.
Once approved, contributions (levies) are divided among owners according to their Participation Quota (PQ). The PQ is determined by calculating the floor area of an owner’s section as a percentage of the total floor area of all sections in the scheme.
For example: If an owner’s section is 50 square metres, and the total floor area of all sections is 1000 square metres, the PQ is 5%. The owner will then pay 5% of the total approved budgeted expenses.
In most cases, levies are collected in monthly instalments over the financial year to make payments manageable for owners.

To help keep levy costs as low as possible, owners can take an active role in the management of the scheme.
* Get Involved as a Trustee Serving as a trustee allows you to participate in the annual budgeting process and make decisions about expenses. Trustees, not managing agents, have the final say on service providers for insurance, security, maintenance, and other contracts. Appointing more cost-effective providers can save significant amounts and reduce levies.
* Review the Budget and Financial Statements Before approving the budget at the Annual General Meeting (AGM), carefully study the proposed expenses and financial statements. Query any costs that seem unusually high or unnecessary. This encourages trustees to investigate alternatives and ensure costs are justified.
* Suggest Alternatives If costs seem excessive, approach the trustees with suggestions or assistance as a partner, not an accuser. Trustees may welcome advice, especially as many are not formally trained in financial management.

By actively participating and holding the trustees accountable for careful financial management, owners can help control expenses and keep levies reasonable.

Levies are contributions paid by all owners in a sectional title scheme to cover the costs of maintaining and managing the property. These are collected by the Body Corporate as required by the Sectional Titles Schemes Management Act.
Levies are allocated to two funds
The Administrative Fund – Covers day-to-day expenses, such as maintenance, cleaning, security, and utilities, based on the approved annual budget.
The Reserve Fund – Allocates funds for long-term repairs and maintenance as outlined in the 10-year Maintenance, Repair, and Replacement Plan.
Levies typically cover
Maintenance of common property (gardens, roads, swimming pools)
Cleaning and security services
Insurance premiums
Managing agent fees
Professional services (auditors, attorneys)
Municipal rates, taxes, and utilities
Banking fees and administrative costs
Major maintenance projects (like repainting, reroofing, and repaving)
In short, levies ensure the property remains well-maintained and financially sustainable, benefiting all owners in the scheme.

Rules for Pets in Sectional Title Schemes
Owning pets in sectional title schemes (e.g., complexes or flats) is regulated by the Sectional Title Schemes Management Act (STSMA). Unlike standalone homes, pet ownership in these schemes requires compliance with specific rules.

Key Rules for Pet Ownership
Trustees’ Written Consent 

• Residents must obtain written permission from the trustees to keep pets.
• Trustees cannot unreasonably withhold consent but must consider the request’s circumstances and the scheme’s best interests.
• Conditions may be attached to the approval, such as
• Proper control of the pet.
• Cleaning up after the pet.
• Ensuring the pet does not disturb other residents.

‘No Pets’ Policies
A strict ‘no pets’ rule is allowed if adopted through a special resolution, requiring at least 75% approval (both in value and number) of those present at the vote.
Without this resolution, such a rule cannot be enforced.

Service Dogs 
Service dogs (e.g., guide dogs, hearing dogs, or therapy dogs) are automatically permitted under Rule 1(2) of the STSMA.
Proof of disability must be provided to the body corporate.

Removing Pets That Break Rules

If a pet breaches body corporate rules (e.g., persistent barking, disturbance, or lack of permission), the body corporate can do the following 

• Approach the Community Schemes Ombud Service (CSOS), private arbitration, or the courts to have the pet removed.
• Withdraw consent if there is a valid reason.
• Need Assistance With Pet Ownership Rules?

For expert advice on navigating pet ownership disputes in sectional title schemes, contact us today. We’ll help you understand your rights and responsibilities.

No, it is a legal requirement in South Africa to use a conveyancer for property transfers.

There are several costs, including:

• Transfer duty: A tax paid to SARS by the buyer, calculated based on the property's value.   
• Conveyancing fees: Fees for the conveyancer's services.   
• Bond registration costs: If the buyer is taking out a mortgage.
• Rates clearance certificate: Fees to obtain this from the municipality.
• Compliance certificates: Costs for electrical, gas, and other necessary certificates.
   

The conveyancer lodges all the transfer documents at the Deeds Office. Examiners check the documents for compliance, and if everything is in order, the transfer is registered, and the buyer becomes the legal owner

This certificate from the local municipality confirms that all rates and taxes on the property have been paid up to date. It's required for the transfer to proceed. 

This is a legally binding document signed by the buyer and seller, outlining the terms and conditions of the sale, including the purchase price, payment terms, and any conditions (e.g., obtaining a bond).
 

The buyer is responsible for paying the transfer duty, conveyancing fees, and bond registration costs (if applicable).

Yes, while the fundamental principles of property zoning are generally consistent, there are often significant differences in the specific regulations applicable to urban and rural areas. Rural zoning schemes may place a greater emphasis on agricultural activities and environmental protection, often with more stringent regulations in these areas. Conversely, urban zoning schemes tend to focus on issues such as population density, building heights, and the promotion of mixed-use developments. It is essential to consult the specific zoning scheme relevant to the location of the property.

Yes, it is possible, but this requires formal application for either a rezoning or consent use through the relevant local municipality. The success of such an application typically hinges on demonstrating that the proposed change aligns with the prevailing zoning scheme for the area and will not negatively impact neighboring properties or the overall character of the community. This process often involves detailed submissions and may require professional assistance to navigate effectively.

Yes, municipalities have the authority to impose various penalties for zoning law violations. These can include significant fines and even legal action to compel compliance. In certain instances, if a property is developed or used in a manner that contravenes the designated zoning, the municipality may issue an order requiring the demolition of any non-compliant structures. It is crucial to ensure full compliance with zoning regulations to avoid such penalties.
 

The duration of a rezoning application can vary significantly depending on several factors, including the specific municipal processes involved, the potential for public objections, and the complexity of the proposed land use changes. Generally, the timeframe can range from a few months to well over a year. Our team at Aucamp Attorneys can provide guidance on the expected timelines based on the specific circumstances of your application.

An Environmental Impact Assessment (EIA) is a critical process used to evaluate the potential environmental consequences of a proposed property development. For certain types of projects, particularly those with the potential for significant environmental impact, a positive EIA is a mandatory prerequisite before the development can proceed. This ensures that the proposed development complies not only with zoning regulations but also with relevant environmental legislation, promoting sustainable and responsible land use. Our attorneys can advise on when an EIA is required and assist with navigating this process.

Yes, you can apply for a Protection from Harassment Order in such cases. This type of order specifically addresses harassment between individuals who are not in a domestic relationship.
 

While you are not legally required to have a lawyer, it is highly recommended. A lawyer can provide invaluable assistance in preparing your application, gathering necessary evidence, and representing you in court, ensuring the process is handled correctly and effectively.   

You need to apply at the Magistrate's Court in the area where you reside or where the harassment/domestic violence is occurring. You will need to complete an application form and provide a sworn statement (affidavit) detailing the incidents and reasons why you need the protection order.   
 

The duration of a protection order can vary. Harassment orders can be granted for a specific period determined by the court. Domestic Violence Protection Orders can also have a duration set by the court, often for a significant period, and can sometimes be made permanent under certain circumstances.   
 

There are two main types: Protection from Harassment Orders and Domestic Violence Protection Orders.

Once you submit your application, the court will review it. If an interim order is granted, it will be served on the respondent (the person you are seeking protection from). A court date will be set for a hearing where both you and the respondent can present your sides of the story.   
 

You can still apply for a Protection from Harassment Order. If the court is convinced that you are being harassed, it may issue a directive ordering the SAPS to investigate and identify the perpetrator. If the harassment is through electronic communication, the court can order the service provider to provide the perpetrator's details.   

For expert legal assistance with obtaining a protection order in South Africa, please contact Aucamp Attorneys for a confidential consultation.

A final protection order is issued by the court after the hearing, if the court is satisfied that there are sufficient grounds for it. This order contains specific prohibitions that the respondent must adhere to and can last for a specified period.   

A protection order is a court order issued by a Magistrate's Court to protect an individual from harassment or domestic violence. It prohibits the perpetrator from engaging in specific harmful behaviours.  

An interim protection order is a temporary order that the court can issue urgently if it believes there is sufficient evidence and an immediate need to protect the applicant from harm. It has immediate legal effect and remains in place until the court makes a final decision.   

A Protection from Harassment Order is for any situation where someone is being subjected to unwanted conduct that causes harm or distress, regardless of the relationship between the parties. A Domestic Violence Protection Order is specifically for victims who are in a domestic relationship with the abuser.   
 

A protection order can prohibit a wide range of behaviours, including physical, sexual, emotional, verbal, psychological, and economic abuse, intimidation, harassment, stalking, damage to property, and unwanted communication or contact.   

You should provide as much detailed information as possible in your affidavit, including dates, times, locations, and descriptions of the incidents. Supporting evidence can include text messages, emails, social media posts, photos, videos, medical reports, and witness statements.   

If the respondent violates a protection order, it is a criminal offense. You should report the violation to the South African Police Service (SAPS) immediately and provide them with a copy of the protection order and details of the violation. If a warrant of arrest was issued with the protection order, the SAPS is obligated to arrest the perpetrator if it appears the order has been breached and you have suffered harm.   

If the respondent violates a protection order, it is a criminal offense. You should report the violation to the South African Police Service (SAPS) immediately and provide them with a copy of the protection order and details of the violation. If a warrant of arrest was issued with the protection order, the SAPS is obligated to arrest the perpetrator if it appears the order has been breached and you have suffered harm.   

Any person who is experiencing harassment or domestic violence can apply for a protection order. Additionally, someone with a material interest in the well-being of the victim can apply on their behalf. 

While technically you can attempt to apply for rehabilitation yourself, it is strongly discouraged. The legal process is complex, requires specific legal knowledge, and involves strict adherence to the Insolvency Act and court procedures.  Mistakes can lead to delays, complications, or even the rejection of your application.

Engaging experienced insolvency attorneys like AUCAMP Attorneys provides significant advantages:

• Legal Expertise: We ensure your application is legally sound and properly prepared.
• Process Navigation: We handle all the complex procedures and paperwork.
• Maximise Chances of Success: Our experience significantly increases the likelihood of a successful and timely rehabilitation.
• Peace of Mind: You can focus on rebuilding your life knowing your rehabilitation application is in expert hands.

AUCAMP Attorneys offers comprehensive rehabilitation services, including

• Free Initial Consultation: To assess your situation and explain your options.
• Eligibility Assessment: Determining your earliest application date.
• Expert Legal Advice and Guidance: Throughout the entire process.
• Document Preparation and Filing: Handling all legal paperwork accurately and efficiently.
• Court Representation: Advocating for your rehabilitation in court if needed.
• Personalized and Compassionate Support: We understand the stress of insolvency and provide empathetic guidance.

Ready to take the first step towards financial freedom? Contact AUCAMP Attorneys today for a confidential consultation and let us guide you through the Rehabilitation process.

The application is made to the High Court and involves a formal legal process.  Key steps include:

• Consultation with Attorneys (like AUCAMP Attorneys): Essential to understand your eligibility, gather documents, and prepare your application.
• Affidavit Preparation: A sworn statement detailing your financial history, sequestration process, and why you deserve rehabilitation.
• Government Gazette Notice: Publicly advertising your intention to apply for rehabilitation.
• Filing the Application with the High Court: Submitting all required documents and paying court fees.
• Court Hearing (Potentially): If unopposed, often decided on papers. If opposed, a court appearance may be necessary.
• Court Order: If successful, the court grants a Rehabilitation Order, officially ending your insolvency.
• AUCAMP Attorneys handles every step of this complex process for you.

Rehabilitation typically discharges most debts that existed before the date of your sequestration order.  However, there are some exceptions, such as debts arising from fraud related to your insolvency. Debts you incur after the sequestration order are not discharged and remain your responsibility.
 

Rehabilitation, in the context of insolvency, is the legal process that ends your sequestration.  It's essentially a "financial fresh start."  Once rehabilitated, you are no longer considered insolvent, and you are legally released from most of the debts you had before sequestration.  AUCAMP Attorneys specializes in guiding you through this process to regain your financial freedom

Creditors can oppose your rehabilitation, although this is not always common. If opposition occurs, the court will consider their objections, along with your application and the Master's report.  This can complicate and potentially delay the process.  Having experienced insolvency attorneys like AUCAMP Attorneys representing you significantly increases your chances of a successful rehabilitation, even if opposed. We will prepare a strong application and argue your case effectively.

The waiting period depends on your specific situation. You may be eligible to apply:

• Immediately (At Any Time): If you can pay all proven creditor claims in full, or if creditors accept an offer of composition (settlement).
• After 6 Months: If no creditors have proven claims against your estate, you haven't been convicted of insolvency-related fraud, and haven't been sequestrated before.
• After 12 Months: Typically, after 12 months from the date the Master of the High Court confirms the Trustee's first Liquidation and Distribution account (with no prior sequestrations or fraud convictions).
• After 3 Years: If you've been sequestrated before (and no fraud convictions).
• After 5 Years: If you've been convicted of certain fraudulent acts related to insolvency.
• After 10 Years (Automatic): If you haven't applied earlier, you're automatically rehabilitated after 10 years (unless a court order prevents it).

Contact AUCAMP Attorneys for a consultation to determine your specific eligibility timeframe.

Yes, automatic rehabilitation happens after 10 years. However, applying for rehabilitation sooner through the High Court offers significant advantages:

1. Faster Financial Freedom: You don't have to wait a decade to regain control. You could be rehabilitated in as little as 6 months in some cases!
2. Clear Your Name Sooner: While insolvency and rehabilitation remain on your record for a time, early rehabilitation allows you to rebuild your creditworthiness much faster.
3. Regain Control Sooner: End the restrictions of insolvency sooner, allowing you to hold certain positions, act as a company director, and fully participate in the economy again.
4. Avoid Potential Complications: Waiting for automatic rehabilitation leaves you vulnerable to potential challenges from interested parties who could object and prevent automatic rehabilitation.
5. Applying for rehabilitation with AUCAMP Attorneys puts you in control and speeds up your journey to financial recovery.

No, rehabilitation doesn't instantly erase your past credit history.  Information about your sequestration and rehabilitation will remain on your credit record for a period (typically 5 years for rehabilitation).  However, rehabilitation is a positive step that signals you have legally addressed your insolvency. Over time, with responsible financial management after rehabilitation, you can rebuild your creditworthiness.

Yes, the legal landscape is evolving to recognize these marriage systems more fully.  While historically there were complexities, recent legal developments and legislation are increasingly recognizing Muslim, Hindu, and Jewish marriages for various legal purposes, including divorce.  The goal is to accommodate the religious aspects of these marriages within the civil law framework, ensuring fairness and upholding constitutional rights, particularly for women.  However, this area is still developing, and the specifics can be complex. Legal advice tailored to your specific religious marriage is crucial.

Yes, absolutely.  Aucamp Attorneys have experience in family law and understand the sensitive interplay between religion and divorce in South Africa. We can:

1. Provide clear legal advice on your rights and the divorce process under South African law, regardless of your religious background.
2. Guide you through the civil divorce process in court.
3. Advise you on how religious factors might be relevant (or irrelevant) in your specific case.
4. Represent your best interests in negotiations and court proceedings.
5. Offer culturally sensitive and respectful legal support that acknowledges the importance of your religious beliefs.

Yes and no. While your marriage may be deeply rooted in religious ceremony, in South Africa, divorce is primarily a legal process governed by civil law, regardless of where or how you were religiously married.  The South African legal system is secular.  Whether you were married in a church, mosque, temple, or under customary rites, the legal dissolution of your marriage and its consequences (division of assets, child custody, maintenance) will be determined by South African civil law, specifically the Divorce Act and related legislation.

No. A religious annulment is a process within your religious institution that may declare your marriage invalid according to religious law. It is not a legal divorce recognized by the South African state. To be legally divorced in South Africa, you must obtain a divorce order from a civil court, even if you have received a religious annulment. You may need to pursue both a religious annulment (if desired by your faith) and a civil divorce to fully dissolve the marriage in both religious and legal contexts.

Customary Marriages in South Africa are legally recognized.  The divorce process for a customary marriage is governed by civil law, just like civil marriages.  While customary traditions and beliefs may influence personal perspectives on divorce, the legal dissolution must occur through the civil courts.  The Recognition of Customary Marriages Act ensures that these marriages are subject to the same divorce laws as other marriages in South Africa

Yes. South African civil law allows for divorce based on the irretrievable breakdown of the marriage, regardless of religious doctrines that may discourage or prohibit divorce.  The court's focus will be on whether the marriage has legally broken down, not on religious permissions or prohibitions. You have the right to pursue a civil divorce in South Africa, even if it conflicts with your religious beliefs
 

Generally, yes. If you and your spouse are domiciled in South Africa (meaning you are living here with the intention to reside permanently), South African courts likely have jurisdiction to grant you a divorce, even if your marriage was solemnized religiously or in another country.  However, international elements can add complexity. It's essential to consult with a family law attorney to determine jurisdiction and the applicable legal processes in your specific situation.

Generally, no. Religious courts or institutions in South Africa do not have the legal authority to grant a civil divorce that is recognized by the state.  Many religious bodies have their own processes for religious divorce or annulment within their faith (e.g., a Get in Jewish law, or processes in Islamic law). These religious processes are separate from and in addition to the need for a civil divorce under South African law.  To be legally divorced in South Africa, you must go through the civil divorce process in a Magistrate's Court or High Court.
 

In limited ways, yes. While religious doctrine is not the basis for divorce under civil law, your religious beliefs and practices can be considered as evidence if they are relevant to proving the irretrievable breakdown of the marriage. For example, irreconcilable differences stemming from religious disagreements might be considered.  Furthermore, in matters of child custody, the court, in determining the best interests of the child, may consider the child's religious upbringing, but this is just one factor among many and is not decisive. The court will not enforce religious doctrines or rules in its divorce orders.

Not necessarily.  While you are generally responsible for maintenance, repairs, and replacements of pipes solely serving your section (unit), there's a key exception. If a pipe within your section also serves other units or the common property, the Body Corporate becomes responsible for its maintenance and repair under the Sectional Titles Schemes Management Act (STSMA).  It depends on what the pipe serves, not just where it's located.

Sectional title insurance policies typically cover damage caused by burst pipes (water damage to buildings, common property, and sometimes unit interiors), but insurance coverage and repair responsibility are separate issues.

• Insurance Covers Damage, Not Necessarily Repair Responsibility: Insurance may pay for damage caused by a burst pipe, regardless of who was responsible for repairing the pipe itself.
• Excess/Deductibles: Even if insurance covers damage, there's often an excess (deductible) that needs to be paid. The scheme rules might dictate who pays the excess depending on responsibility for the pipe.
• Maintenance vs. Damage: Insurance usually covers sudden and accidental damage (like a burst pipe). It generally doesn't cover ongoing maintenance or repairs due to wear and tear or lack of maintenance.
• Consult Your Scheme's Insurance Policy: Carefully review your scheme's insurance policy to understand what is covered in plumbing emergencies and how excesses are handled.
   

When a pipe issue arises:

• Stop Further Damage: Immediately take steps to minimize water damage (turn off water supply if safe, contain leaks).
• Assess the Pipe's Location and Function: Try to determine:
• Where is the pipe located (inside your section, common property, EUA)?
• What does the pipe appear to serve? (Just your unit, or others?)
• Consult Sectional Plans (if available): Scheme plans might show the layout of some main pipes, though detailed plumbing plans are not always readily available.
• Review Scheme Rules: Complex rules may offer some clarification, but often defer to the STSMA.
• Contact the Managing Agent or Trustees: Report the issue immediately and provide your assessment of the pipe's location and function.
• Consider Getting a Plumber's Opinion: A plumber can assess the pipe, determine the source of the problem, and often offer an opinion on whether it serves only your unit or has a wider function, aiding in responsibility determination.
• Communicate and Document: Keep written records of all communication, plumber assessments, and any photographic evidence.
   

The Body Corporate is responsible for pipes inside your unit if those pipes are not exclusively serving your unit.  This is typically when pipes are considered "rising mains" or "stacks" that carry water or sewage to or from multiple units or the common property. For example:

• Shared Water Supply Pipes: If a pipe runs through your unit to supply water to units above you.
• Main Drainage Stacks: Vertical pipes carrying waste from multiple units, even if part of the stack is within your section.
• If the pipe benefits more than just your unit, even partially located within your boundaries, the Body Corporate likely carries the repair responsibility.

Responsibility for pipes in Exclusive Use Areas (EUAs) can be more complex.

• Operational Responsibility (Body Corporate): The Body Corporate generally has the operational responsibility for maintaining all common property, including EUAs, meaning they usually arrange and oversee repairs.
• Financial Responsibility (Potentially EUA Holder): However, the financial responsibility often falls on the holder of the exclusive use right. This is particularly true if the pipe directly serves the EUA and aligns with its intended purpose (e.g., an irrigation pipe within an exclusive use garden).
• Key Considerations for EUAs: To determine financial responsibility, factors like:
• EUA Boundaries: Precisely where the EUA boundaries are defined.
• Purpose of the EUA: What the EUA is intended for (garden, parking, etc.).
• Pipe's Function: Whether the pipe serves the EUA itself or the broader scheme.
• If a pipe in your EUA serves the wider scheme, the Body Corporate might bear financial responsibility despite its location within your EUA.  It's case-specific and often requires careful assessment.
   

The Body Corporate is always responsible for the maintenance, repair, and replacement of all pipes located on the common property. This is a clear statutory duty under the STSMA, regardless of how many units or which areas the pipe serves. Even if a common property pipe only serves your unit, the Body Corporate is still responsible for its upkeep and repair.

Disputes can arise. If you disagree with the Body Corporate's assessment of responsibility:

• Communicate in Writing: Clearly outline your reasons for disputing their decision, referencing relevant sections of the STSMA and any evidence you have gathered (plumber reports, etc.).
• Request Clarification of their Reasoning: Ask the Trustees to explain why they believe you are responsible, referencing specific rules or legislation.
• Seek Mediation: Suggest mediation to try to reach an amicable solution with the Body Corporate.
• Lodge a Dispute with the CSOS: If mediation fails, you can formally lodge a dispute with the Community Schemes Ombud Service (CSOS). The CSOS provides a dispute resolution forum specifically for sectional title matters.
• Legal Advice (Aucamp Attorneys): Consulting with Aucamp Attorneys specializing in sectional title law is highly recommended to understand your legal options and navigate dispute resolution processes effectively.

The "median line" is a helpful, though not strictly legally defined, concept.  Imagine an imaginary line running through the middle of shared walls, floors, or ceilings between units and between units and common property.

• General Guideline: It's often used as a practical guideline to differentiate between owner and Body Corporate responsibility. Generally, anything inside your unit, up to the median line (towards your unit's interior), is considered your responsibility. Anything beyond the median line (towards the common property or another unit) is more likely the Body Corporate's responsibility.
• Not Absolute: The "median line" is not a rigid legal definition in the STSMA. The function of the pipe (who it serves) is the ultimately determining factor, not just its physical location relative to a median line. It's a helpful guide but not a definitive rule.
   

In plumbing emergencies (burst pipes, major leaks), the Body Corporate often takes initial action to mitigate damage and stop the immediate problem. This is a practical necessity to protect the building and all units.

• Body Corporate Typically Arranges Emergency Plumber: They will usually call a plumber to stop leaks and prevent further damage.
• Responsibility Determination After Emergency: The question of who ultimately pays (owner or Body Corporate) is then determined after the immediate emergency is addressed, following the principles of pipe function and location outlined earlier.
• Don't Delay Emergency Action: Focus on stopping the leak first, then sort out responsibility. Delaying emergency repairs to argue about responsibility can lead to far greater damage and costs.

• Common Property Pipes: Body Corporate: The Body Corporate is responsible for preventative maintenance of all pipes on common property as part of their overall maintenance obligations for common areas. This should be factored into their 10-Year Maintenance Plan and budget.
• Pipes Within Sections: Owner (Generally): Generally, preventative maintenance of pipes solely serving your section is your responsibility as the owner (e.g., checking for leaks under sinks, maintaining internal plumbing within your unit). However, if the pipes are deemed Body Corporate responsibility (serving multiple sections), then preventative maintenance might also fall under their purview, though this is less common in practice.

While a verbal resignation might be technically considered a resignation if your intention is unequivocally clear and accepted by your employer, it's incredibly risky.  Verbal resignations are prone to misinterpretation and lack proof. For your own protection and legal clarity, always submit your resignation in writing.

Yes, if your employment contract validly stipulates a notice period longer than the BCEA minimums, you are generally obligated to serve that longer notice period.  This is a contractual agreement you entered into when accepting the job.

No. South African law prohibits employers from giving you notice of termination (including for purposes of resignation calculations) while you are on any form of statutory leave (annual leave, sick leave, maternity leave, family responsibility leave), except for sick leave.  Also, employers cannot force you to take annual leave to run concurrently with your notice period.

Generally, yes. Both the Basic Conditions of Employment Act (BCEA) and your employment contract usually require you to give notice when resigning.  The minimum notice periods under the BCEA are:

1. 1 week (if employed 6 months or less)
2. 2 weeks (if employed 6 months to 1 year)
3. 4 weeks (if employed 1 year or more, or certain types of workers after 6 months)
4. Your contract might stipulate a longer notice period.  Failing to give proper notice can have legal and financial consequences. Aucamp Attorneys can review your contract and advise on your specific notice obligations.

While not strictly mandated by the BCEA in all cases, it is highly recommended and often contractually required that your resignation be in writing.  A written resignation letter provides clear proof of your intention to resign, your notice period, and your last day of employment, preventing misunderstandings and potential disputes.  For legal certainty, always resign in writing
 

Upon resignation, you are legally entitled to:

• Final Salary: Payment for all days worked up to your last day of employment.
• Accrued Leave Pay: Payment for any untaken annual leave days you have accumulated.
• Provident/Pension Fund: Your contributions to your provident or pension fund are yours. You can withdraw them (subject to tax) or transfer them to another fund.

If you don't serve your full notice period without a valid legal reason or agreement with your employer, you risk:

• Breach of Contract Claim: Your employer could sue you for damages they can prove resulted from your early departure.
• Loss of Pay: Your employer might be able to deduct an amount equivalent to the unserved notice period from your final salary and leave pay, if there is a written agreement allowing this deduction.
• Negative Reference: It can damage your professional reputation and result in a negative reference from your former employer.

In South Africa, a resignation is a voluntary and clear action by an employee to end their employment. It must be a definite decision communicated to the employer, usually in writing, indicating the employee's intention to leave their job permanently.  It's a unilateral act by the employee to terminate the employment contract.
 

The minimum legal notice periods are set by the BCEA (see Q2). However, your employment contract may require a longer notice period.  You are legally bound by the longer of the two – either the BCEA minimum or your contractual notice period.  Always check your employment contract first.

Your employer is legally required to pay your final salary and any outstanding amounts (like accrued leave pay) on the next regular payday following your last day of employment.

No.  ROTAs are not automatically enforceable in South Africa.  South African law recognizes the principle of freedom of trade and the right to earn a living.  Courts carefully scrutinize ROTAs to ensure they are reasonable and justifiable before enforcing them. An unreasonable ROTA will likely be deemed unenforceable and against public policy.

Yes, employees can challenge the enforceability of a ROTA in court if they believe it is unreasonable or unlawful. Common grounds for challenging a ROTA include arguing that it is:

• Unreasonable in Scope, Duration, or Geography: Too broad, too long, or covers an unjustifiable area.
• Not Protecting a Legitimate Business Interest: The employer is not genuinely protecting confidential information or client connections, but simply trying to stifle competition unfairly.
• Against Public Policy: The restraint is harmful to the public interest or unduly restricts the employee's right to earn a living.
• Lack of Consideration (Potentially): In some cases, arguing insufficient or no additional consideration was given for the restraint.
• If you believe your ROTA is unenforceable, consult with Aucamp Attorneys to assess your legal options and potential for challenging the agreement in court.

Yes, employees can challenge the enforceability of a ROTA in court if they believe it is unreasonable or unlawful. Common grounds for challenging a ROTA include arguing that it is:

• Unreasonable in Scope, Duration, or Geography: Too broad, too long, or covers an unjustifiable area.
• Not Protecting a Legitimate Business Interest: The employer is not genuinely protecting confidential information or client connections, but simply trying to stifle competition unfairly.
• Against Public Policy: The restraint is harmful to the public interest or unduly restricts the employee's right to earn a living.
• Lack of Consideration (Potentially): In some cases, arguing insufficient or no additional consideration was given for the restraint.
• If you believe your ROTA is unenforceable, consult with Aucamp Attorneys to assess your legal options and potential for challenging the agreement in court.

Yes, employees can challenge the enforceability of a ROTA in court if they believe it is unreasonable or unlawful. Common grounds for challenging a ROTA include arguing that it is:

• Unreasonable in Scope, Duration, or Geography: Too broad, too long, or covers an unjustifiable area.
• Not Protecting a Legitimate Business Interest: The employer is not genuinely protecting confidential information or client connections, but simply trying to stifle competition unfairly.
• Against Public Policy: The restraint is harmful to the public interest or unduly restricts the employee's right to earn a living.
• Lack of Consideration (Potentially): In some cases, arguing insufficient or no additional consideration was given for the restraint.
• If you believe your ROTA is unenforceable, consult with Aucamp Attorneys to assess your legal options and potential for challenging the agreement in court.

Before signing a ROTA, carefully consider:

• Scope of Restrictions: Understand exactly what activities, industries, and roles you are restricted from after leaving. Is it too broad and limiting for your future career prospects?
• Duration: Is the restraint period (e.g., 6 months, 1 year, 2 years) reasonable? How will it impact your ability to find new work?
• Geographical Area: Does the geographical restriction make sense for your industry and career? Is it limited to areas where your employer genuinely operates, or is it overly broad?
• Legitimate Business Interest: Is there a genuine and justifiable business reason for the restraint? Are you likely to possess confidential information or client relationships that warrant this restriction?
• Consideration: Is the employer offering any specific compensation or benefits in exchange for you agreeing to the ROTA?
• Seek Legal Advice: If you are unsure about any aspect of a ROTA, or feel it is unfair or overly restrictive, consult with Aucamp Attorneys for independent legal advice before signing.
• Enforcement & Disputes

South African courts recognize the following as potentially legitimate business interests that can justify a ROTA:

• Confidential Information (Trade Secrets): Truly proprietary and confidential business information that provides a competitive edge. General skills or knowledge acquired during employment are not typically protectable.
• Customer Connections/Goodwill: Strong, established relationships with key clients that are personally linked to the employee and could be transferred to a competitor, causing direct harm. General client contact lists are less likely to be considered protectable.
• Goodwill/Trade Connections: In limited senior roles where an employee embodies significant company reputation and market influence.

Vague or generic claims of needing to protect "business interests" are insufficient. The legitimate interest must be clearly identified and demonstrably threatened.
 

For a ROTA to be considered "reasonable" and enforceable in South Africa, it must be balanced and justifiable in terms of:

• Scope of Restraint (Activity): The types of activities the ex-employee is restricted from must be clearly defined and directly linked to protecting the employer's legitimate business interests. Overly broad restrictions that prevent an employee from using their general skills are unlikely to be reasonable.
• Duration: The length of the restraint period must be limited to what is reasonably necessary to protect the employer's interests. Longer periods (beyond 12-24 months, often shorter) require strong justification.
• Geographical Area: The geographical area of the restraint must be limited to where the employer genuinely conducts business and where their legitimate interests are truly at risk. Wide, blanket geographical restraints are generally disfavored.
• Public Interest: The restraint must not be contrary to public interest. For example, if it prevents essential services or stifles fair competition excessively.

The "reasonableness" assessment is fact-specific and determined by the courts on a case-by-case basis. Aucamp Attorneys can advise on the likely reasonableness of a ROTA based on your specific circumstances.

Businesses should seek legal advice from Aucamp Attorneys in these situations:

• Before Implementing ROTAs: To draft legally sound, tailored ROTAs that maximize enforceability and protect your specific business interests proactively.
• When Hiring Key Employees: To determine if a ROTA is appropriate for a new role and to ensure the ROTA is properly incorporated into the employment contract.
• When an Employee Resigns (Potentially Breaching ROTA): Immediately upon suspecting a breach to assess your enforcement options and take swift legal action if necessary.
• When Reviewing or Updating Existing ROTAs: To ensure your agreements remain legally compliant and effective as laws and business practices evolve.
• Any Dispute Arising from a ROTA: To receive expert legal representation in ROTA disputes, whether seeking to enforce or challenge a restraint.
   

Businesses use ROTAs to protect their valuable assets and competitive edge.  Legitimate business interests that ROTAs aim to safeguard include:

• Confidential Information: Trade secrets, proprietary processes, customer lists, pricing strategies, marketing plans, and other sensitive business information.
• Client Relationships: Established connections and goodwill with key clients, built and nurtured by the employee, which could be unfairly exploited if the employee joins a competitor.
• Stable Workforce: In limited cases, to prevent the systematic poaching of key, highly specialized employees by competitors, though this is less frequently justifiable.

ROTAs are designed to prevent unfair competition and protect a business from suffering undue harm when a valued employee departs.
 

You can apply at a labour centre or through the UIF's online portal. You will need to provide necessary documentation, including:

• Your ID.
• A UI-19 form (provided by your employer).   
• other required forms.
   

The duration of benefits depends on your contribution history.
 

The Labour Relations Act (LRA) governs retrenchments. Employers must follow a fair process, including:

• Meaningful consultation with affected employees or their representatives.   
• Providing written notice of the proposed retrenchments.   
• Disclosing relevant information.
• Considering alternatives to retrenchment.   
• Applying fair and objective selection criteria.
• Paying severance pay.   

You can refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 30 days of your retrenchment or contact Aucamp Attorneys and we will help guide you with sound and accurate advice.  

Retrenchment is the termination of employment due to the employer's operational requirements, such as economic downturns, restructuring, or technological advancements.   

Severance pay is compensation for retrenched employees. The minimum is typically one week's pay for each completed year of service, but it can be higher based on employment contracts or company policies.   
 

The UIF provides short-term financial relief to workers who become unemployed, or are unable to work.   

You are also entitled to:

• Outstanding leave pay.   
• Notice pay.
• Any pro-rata bonuses or pension payouts.   
   

The South African governments website, and the department of labour websites are the best places to get up to date information.

Both employers and employees contribute to the UIF.
 

Employees who have contributed to the UIF and have been retrenched, dismissed, or whose contracts have expired are generally eligible.   

The Road Accident Fund must be offered a reasonable period of time in which to assess its liability in respect of the claims lodged, enter the claims into the relevant computer system, perform the necessary enquiries, and thereafter arrange for Electronic Funds Transfer directly into your, or other nominated bank account.
You will be advised by way of a letter which claims have been admitted, how the amount of money paid into the bank account was made up, which claims require further explanation and which claims have been rejected as not being accident related or a claim in terms of the Undertaking. 
 

Subject to the terms and conditions of the undertaking certificate, the injured, or the supplier, may claim the costs of accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the injured.
Where emergency medical treatment is provided to the injured (that is treatment to save the injured's life or a bodily function) the Fund's liability to compensate the injured or the supplier, as the case may be, is determined in accordance with a prescribed tariff.
 

This will depend on the type of the claim which is submitted as indicated below: 

• A tax invoice for medical expenses.
• A Service contract, certified copy of the employee's ID and proof of the costs being incurred for a domestic worker, caregiver and/or gardener.
• Details of the vehicle that is being used to transport the injured including the name of the owner and driver, purchase price of the vehicle, type, make and model of the vehicle, Distance traveled and tax invoice from the service provider.
• Proof of the costs of special school fees, transport to and from the school and hostel fees before the accident together with the current costs (Tax invoice) 
• Approved building plans of the house before the accident, photos of the areas which need to be altered and at least 2 fully specified reasonable quotes for the proposed building costs. 

Identified claims (claims where the identity of the driver or owner of the guilty motor vehicle is known) must be lodged with the Fund within 3 years from the date of the accident and must be finalised within 5 years from the date of accident.
Hit and Run claims (claims where the identity of the driver or owner of the guilty motor vehicle is unknown) must be lodged with the Fund within 2 years from the date of the accident and must be finalised within 5 years from the date of accident.
Claims in terms of an undertaking certificate issued in terms of section 17(4)(a)(ii) of the Act must be lodged and finalised within 5 years from the date on which services were rendered to the injured.
 

The following are entitled to make a ​claim:

• A person who sustained a bodily injury in the accident (except a driver who was the sole cause of the accident);
• A dependent of a deceased breadwinner;
• A close relative of the deceased who paid for​ the funeral; and
• A claimant under the age of 18 years must be assisted by a parent, legal guardian or curator ad litem.
• See the Claims procedure section for detailed information on submitting a claim.

While a body corporate may have rules regarding the disconnection of electricity for non-payment of levies or other breaches, they cannot simply disconnect your power without due process.  Even if such a rule exists, the body corporate must obtain a court order authorizing the disconnection. This legal requirement protects owners' rights and ensures that any disconnection is legally justified and considers the specific circumstances of the owner in question.  It's important to understand that the body corporate cannot act unilaterally in this matter.

Yes, it's possible.  According to Prescribed Management Rule (PMR) 21(3)(c), a body corporate may charge interest on overdue levies and other amounts owed.  However, this is subject to certain conditions

• Trustee Resolution The body corporate must have a written resolution from the trustees authorizing the charging of interest.
• Interest Rate Limit The interest rate cannot exceed the maximum annual interest rate permitted under the National Credit Act of 2005.
• Compounding Interest, if charged, is typically compounded monthly in arrears.

It's important to consult your body corporate's rules and any trustee resolutions in place to understand their specific policies regarding late payments and interest charges.

Trustees hold a position of significant responsibility within a body corporate.  They have a fiduciary duty, meaning they are legally obligated to act in the best interests of all owners and manage the property and finances responsibly.  Their core duties include

Management of Common Property Trustees are responsible for the control, management, and administration of the common property, ensuring its maintenance and upkeep.
Rule Enforcement They must ensure that all owners comply with the rules of the sectional title scheme.
Levy Collection Trustees play a key role in ensuring levies are paid, as these funds are essential for the operation and maintenance of the complex.
Managing Agent Appointment Trustees may appoint a managing agent to assist with the day-to-day running of the building or complex.
Regular Meetings The Sectional Titles Act mandates that trustees meet at least once every three months.

When tenants violate the conduct rules of a sectional title scheme, the trustees should first contact the unit owner.  The owner is ultimately responsible for the actions of their tenants, visitors, family members, and contractors.  It's advisable for owners to include a clause in their lease agreements requiring tenants to adhere to the conduct rules.  This makes compliance a condition of the lease.

If the tenant's non-compliance continues, the trustees may take legal action against the owner.  This is because the owner is held accountable for the tenant's behavior.  Such action could ultimately lead to the tenant's lease being cancelled and an eviction application being filed against them by the owner.

As a property owner, you have several avenues available to address concerns or disputes within your community scheme.  

Attend General Meetings:  Active participation in general meetings is crucial.  These meetings provide a platform to voice your concerns, discuss issues, and vote on important matters such as the election of trustees and budget approvals.  Your vote can directly influence decisions impacting your community

• Request Access to Records Transparency is key. You have the right to request access to essential records, including financial statements, budgets, meeting minutes, and other relevant documents.  Reviewing these records can help you understand the financial health and decision-making processes of the body corporate.
• Submit a Formal Dispute If you have a specific issue or dispute, it's important to document it. Submit a written dispute to the body corporate within 14 days of the issue arising.  Clearly outline the nature of the problem, relevant details, and your desired resolution.  This formal submission creates a record of your concern.
• Utilize Dispute Resolution Mechanisms  If informal resolution attempts are unsuccessful, you can explore formal dispute resolution options.  Mediation can be a constructive way to find a mutually agreeable solution.  Alternatively, you can refer the matter to the Community Schemes Ombud Service (CSOS) for adjudication.  The CSOS provides a dedicated platform to resolve disputes within community schemes.

Yes, sectional title rules can be changed or amended, as long as the changes align with the Sectional Titles Act.  The process for doing so is clearly defined in the Act and rules.

How are rules changed? 
Proposed rule changes are presented to the body corporate members at a general meeting. This allows for discussion and debate before a vote is taken.

What voting is required?

• Management Rules - Amendments require a Unanimous Resolution.
• Conduct Rules - Amendments require a Special Resolution.

When do changes take effect? 
Amendments only become effective after being filed at the Deeds Office.

Many sectional title schemes in South Africa do have security measures, but it's not a universal requirement.  The level of security varies widely and depends on the specific scheme's rules, budget, and location.  Common security features include access control (gates, booms), security guards, electric fences, CCTV surveillance, and alarm systems.  However, some smaller or older schemes may have minimal or no formal security.

Guest parking in sectional titles isn't mandatory.  Some schemes (often newer/larger) have visitor parking, especially where parking is scarce. Older/denser schemes may have little or none.  If guest parking exists, rules apply (time limits, permits) and are enforced by the body corporate.  Without guest parking, visitors park on the street, or residents must make arrangements. Always check a scheme's specific rules regarding guest parking.

Managing a sectional title scheme is complex and time-consuming.  Most schemes appoint a managing agent—a specialized company—to handle these tasks.

Managing agents handle finances (collecting levies, bookkeeping, debt recovery, budgeting), arrange maintenance (getting quotes), communicate with owners (sending statements and notices), and assist trustees.

Managing agents have expert knowledge of sectional title law, saving the body corporate time, money, and potential problems.  They must be registered with the Estate Agency Affairs Board and have a Fidelity Fund Certificate if handling body corporate funds.

Internal disputes in South African sectional title schemes should first be addressed through internal dispute resolution mechanisms, such as mediation or arbitration as outlined in the scheme's rules or the Sectional Titles Act.

If these fail, the Community Schemes Ombud Service (CSOS) offers a cost-effective alternative to litigation. Litigation should be a last resort. 

Yes, absolutely. Sexual harassment is not limited to harassment by men against women. It can occur between people of any gender.  The key is the sexual nature of the unwelcome conduct and its impact, not the genders involved.  Harassment can occur from a woman to a man, man to man, or woman to woman.

While witnesses and concrete evidence (emails, messages, etc.) strengthen a case, you are still encouraged to report sexual harassment even if you lack direct witnesses or documentary proof. Your testimony and credible account of events are important evidence.  Employers are legally obligated to investigate all complaints seriously, even without extensive upfront evidence. Aucamp Attorneys can advise on gathering and presenting evidence in your specific situation.

No.  The focus in sexual harassment cases is not on the harasser's intention, but on the impact of their behavior on the recipient and whether the conduct is unwelcome.  Even if someone claims they were "just joking" or didn't mean to offend, if the conduct is sexual in nature and creates a hostile environment or involves coercion, it can still be considered sexual harassment under South African law.

For external disputes referred to the CCMA, the timeframe is generally six months from the date of the incident or the last incident in a series of ongoing harassment.  It's crucial to act promptly. While there may be some flexibility in exceptional circumstances, delaying reporting can weaken your case.  Internal company grievance procedures may have their own timeframes, so review your company policy.

Not necessarily all banter or jokes, but workplace "banter" with sexual undertones can very easily cross the line into sexual harassment.  If the "jokes" are unwelcome, offensive to a reasonable person, create a hostile environment, or persist even after you've indicated discomfort, it can become sexual harassment.  What one person considers "banter," another may find deeply offensive and harassing. Employers should discourage all forms of sexual "banter" to prevent escalation into harassment.

If your employer lacks a policy or fails to act on your complaint, they are likely in breach of their legal obligations. You still have legal recourse. You can:
Formally Grievance: Submit a formal written grievance even if there's no official policy, documenting the harassment and your employer's inaction.
Seek External Legal Assistance: Contact Aucamp Attorneys to understand your rights and options for pursuing legal action. You can lodge a dispute at the CCMA or potentially approach the Labour Court or Equality Court.
 

South African employers have a legal duty to create a workplace free from sexual harassment. This means they MUST:

• Have a Clear Policy: Implement a written sexual harassment policy that defines harassment, prohibits it, and outlines reporting procedures.
• Investigate Complaints: Establish and follow fair procedures for investigating sexual harassment complaints promptly and confidentially.
• Take Action: Take appropriate remedial action if harassment is found to have occurred, including disciplining harassers and supporting victims.
• Provide Training: Educate all employees on sexual harassment, the company policy, and their rights and responsibilities.
• Create a Safe Environment: Foster a workplace culture where reporting harassment is safe and encouraged.

Under South African law, sexual harassment is any unwelcome sexual conduct – be it verbal, non-verbal, or physical – that violates your dignity and rights at work.  It can range from persistent unwelcome jokes and comments to unwanted touching or sexual coercion.  If the behavior makes your workplace hostile or offensive, or if someone in power pressures you for sexual favors related to your job, it's likely sexual harassment.

If you are experiencing sexual harassment:

• Tell the Harasser to Stop (if safe and comfortable): Clearly communicate to the harasser that their behavior is unwelcome and must stop.
• Report it Internally: Follow your company's sexual harassment policy and report the incident to the designated person (HR, manager, etc.).
• Document Everything: Keep detailed records of incidents, dates, times, witnesses, and the impact on you.
• Seek Support: Talk to someone you trust – a friend, family member, colleague, or counsellor.
• File a Formal Grievance: If internal reporting doesn't resolve the issue, file a formal written grievance with your employer.
• Consider External Legal Action: If internal processes are inadequate, you can approach the CCMA, Labour Court, or Equality Court 

Technically, yes, you can attempt to write a Simple Will yourself.  Generic templates and online forms are available. However, this is strongly discouraged, even for "simple" situations.  The apparent cost savings of a DIY approach can be far outweighed by the risks:

• Invalidity: Templates often fail to fully comply with the specific requirements of South African law, leading to your Will being deemed invalid and your estate being treated as intestate.
• Ambiguity and Errors: Legal language requires precision. DIY Wills are prone to vague wording, omissions, and unintended consequences that can cause disputes and lengthy legal battles among your loved ones after your death.
• Lack of Personalization: Generic templates cannot account for your unique circumstances and wishes.
• Engaging Aucamp Attorneys to draft even a "Simple" Will ensures legal validity, clarity, and peace of mind. We can provide a cost-effective solution that protects your loved ones from potential complications.

Creating a Simple Will with Aucamp Attorneys is a straightforward process:

• Initial Consultation: Contact us to schedule a meeting (in-person or virtual). We'll discuss your assets, beneficiaries, and wishes.
• Information Gathering: We'll help you gather the necessary details to prepare your Will.
• Drafting & Review: We will professionally draft your Simple Will and provide it to you for thorough review and feedback.
• Signing & Witnessing: We will arrange for the formal signing and witnessing of your Will at our offices, ensuring all legal formalities are correctly followed.
• Safe Keeping (Optional): We offer secure storage for your original Will for your convenience.

A Simple Will is typically suitable for individuals who have:

• Straightforward assets: Such as a home, personal savings, investments, and personal belongings, primarily located in South Africa.
• Clear wishes for beneficiaries: They know exactly who they want to inherit their assets (e.g., spouse, children, close family).
• No complex family situations: For example, they may not have blended families, estranged relatives, or potential for disputes among beneficiaries.
• A desire for a cost-effective and efficient estate plan.
• If your situation involves any complexities it's best to discuss your specific circumstances with Aucamp Attorneys to determine if a Simple Will is truly sufficient or if a more tailored approach is needed.
   

No, there is no automatic entitlement to spousal maintenance in South Africa. The court will consider several factors to determine if it is fair and just for one spouse to support the other financially after the marriage ends.   

Yes, a spousal maintenance order can be varied by the court if there is a significant change in the circumstances of either party. For example, if the recipient remarries or becomes financially independent, or if the payer experiences a substantial decrease in income, an application can be made to the court to amend or terminate the maintenance order.   

While it is possible to represent yourself, dealing with spousal maintenance can be complex and involve intricate legal arguments. Having an experienced family law attorney, like those at Aucamp Inc., can be invaluable. We can provide you with expert advice, help you understand your rights and obligations, assist with the application process, and represent your best interests in court to achieve a fair and equitable outcome.

Generally, if the recipient of permanent spousal maintenance remarries, the maintenance obligation will likely cease. Cohabitation can also be a factor that the court considers when reviewing a maintenance order, potentially leading to a reduction or termination of payments, depending on the specific circumstances and the terms of the original order.   
 

The court exercises its discretion when deciding on spousal maintenance and considers various factors as outlined in Section 7(2) of the Divorce Act. These include the financial means and earning capacity of each spouse, their financial needs and obligations, their ages and health, the duration of the marriage, the standard of living during the marriage, and any conduct relevant to the breakdown of the marriage.   
 

In South Africa, there are four main types of spousal maintenance:   

• Token Maintenance A minimal amount (e.g., R1 per month) to preserve the right to claim more substantial maintenance in the future if circumstances change.   
• Interim Maintenance Temporary support paid during the divorce proceedings to help a financially dependent spouse meet their basic needs until the divorce is finalized.   
• Rehabilitative Maintenance Support provided for a specific period to allow a spouse to become financially independent through education, training, or job seeking.   
• Permanent or Lifelong Maintenance Ongoing support, typically awarded in long-term marriages where one spouse is unlikely to become self-supporting due to age, health, or other valid reasons. 

The court takes into account several factors when deciding on the amount and duration of spousal maintenance, such as:

• The recipient's financial needs and earning capacity.
• The payer's ability to provide support.
• The length of the marriage.
• The couple's standard of living during the marriage.   
• The age and health of both parties.
• Whether one spouse sacrificed their career for the sake of the marriage or family.

If your ex-spouse fails to pay spousal maintenance as ordered by the court, you have legal options to enforce the order. This can include approaching the Maintenance Court for assistance, which may involve processes like garnishee orders, attachment of assets, or even legal action for contempt of court in certain circumstances.   

Spousal maintenance, often referred to as alimony or spousal support, is financial support that a court may order one spouse to pay to the other after a divorce. It's not an automatic right but is determined based on various factors outlined in the Divorce Act.   
 

Interim spousal maintenance is a temporary measure put in place while the divorce is in progress to assist a financially vulnerable spouse with immediate needs. Permanent maintenance, on the other hand, is a longer-term arrangement determined as part of the final divorce order, intended to provide ongoing financial support.  

No, in South African law, adopted children are treated in the same manner as biological children in divorce proceedings. The courts will apply the principle of the best interests of the child when making decisions about care, contact, and maintenance.

If the surrogate mother is also the genetic mother of the child, she has the right to terminate the surrogacy agreement within 60 days after the birth by giving written notice to the court. In such cases, the legal implications can be complex, and the court will ultimately decide based on the child's best interests. If the surrogate is not genetically related to the child, she generally does not have the right to keep the baby after birth, provided a valid surrogacy agreement is in place.
 

If the surrogate mother is also the genetic mother of the child, she has the right to terminate the surrogacy agreement within 60 days after the birth by giving written notice to the court. In such cases, the legal implications can be complex, and the court will ultimately decide based on the child's best interests. If the surrogate is not genetically related to the child, she generally does not have the right to keep the baby after birth, provided a valid surrogacy agreement is in place.
 

Generally, no. The biological parents of an adopted child do not have legal standing to contest the divorce of the adoptive parents or to seek custody of the child. The adopted child is legally the child of the adoptive parents.

In a divorce involving a child born through surrogacy, the court will treat the child as the biological child of the commissioning parents. Decisions regarding care, contact, and maintenance will be made based on the child's best interests, just as with any other child in a divorce.

South African law prohibits commercial surrogacy. This means that the surrogate mother cannot be paid a fee or reward for acting as a surrogate. However, the commissioning parents can cover reasonable expenses directly related to the surrogacy, such as medical costs, loss of earnings, and insurance.

No, once an adoption order is granted by the court, the biological parents' parental rights and responsibilities are permanently terminated, and they no longer have the legal right to make decisions concerning the child.
 

In South Africa, surrogacy agreements are governed by the Children’s Act. Key requirements include the agreement being in writing and confirmed by the High Court before artificial fertilization. At least one commissioning parent must be domiciled in South Africa, and the surrogate mother must have given birth to a living child previously and have at least one living child of her own. Commercial surrogacy is prohibited.

If biological parents consented to an adoption into a two-parent home and the adoptive parents planned to divorce but did not disclose this, the biological parents might have grounds to argue that their consent was not fully informed. In such rare cases, the court may review the circumstances and consider whether the child's best interests would be served by revoking the adoption order.
 

What happens if the intended parents decide to divorce during the surrogacy process?If the commissioning parents divorce before the surrogate is pregnant, they will need to decide whether to proceed. If the surrogate is already pregnant, the surrogacy typically continues. However, the divorce may impact the legal and practical arrangements for the child after birth, and the court will always prioritize the child's best interests. It's crucial to have a well-drafted surrogacy agreement that anticipates such possibilities.

When adoptive parents divorce, the adopted child's situation is handled similarly to that of a biological child. The court will make orders regarding care, contact, and maintenance that are in the child's best interests.

Once a valid surrogacy agreement is confirmed by the court, the commissioning parent(s) are considered the legal parents of the child from the moment of birth. The surrogate mother relinquishes all parental rights and responsibilities.

Yes, the court is obligated to consider all relevant factors when determining a child's best interests. This includes the child's history, emotional well-being, and any specific needs arising from their birth through surrogacy or adoption. The court aims to ensure a stable and nurturing environment for the child despite the parents' divorce.

A Testamentary Trust does not avoid probate — as the court will typically determine the Trusts authenticity and supervise the distribution of assets. For this reason, Testamentary Trusts may not offer the same level of privacy when compared to alternatives. Additionally, there are court fees associated with probate which all depend on the length of time it takes assets to be distributed.

Testamentary Trusts are taxed as a whole, though beneficiaries will not be forced to pay taxes on distributions from the Trust. Note that you could be responsible for the capital gains tax, depending on your state.

Testamentary Trusts must be set up within a Last Will and Testament, so they can be created following one’s death. Once you have begun the estate planning process, you will need to designate a trustee and beneficiary. From there, you can specify which assets will be in the Trust and when they will be given to said beneficiary.
 

A Testamentary Trust is irrevocable, meaning it cannot be altered after a certain point in time. Because a Testamentary Trust goes into effect after one’s death, at that point it can no longer be altered. This setup can be beneficial, as it prevents the assets from being potentially moved around and taxed repeatedly. 
 

A Testamentary Trust is often a simple trust for taxes purposes. Generally speaking this means the trust cannot generate income, be designated for charity, or distribute out of corpus.

The key legal aspects of buying or selling property in South Africa

• The Contract A written and signed sales agreement is legally required, detailing the price, payment terms, property description, and any conditions. The Consumer Protection Act (CPA) offers certain protections to buyers, especially in transactions with developers.
• Ownership and Transfer The title deed proves property ownership. Conveyancing attorneys manage the transfer process, ensuring legal compliance and registering the transfer at the Deeds Office.
• Financial Aspects The buyer pays transfer duty (a tax) to SARS. The buyer also typically pays conveyancing fees. Bond registration costs apply if financing the purchase. The seller must ensure property rates and taxes are up to date.
• Other Considerations Properties are generally sold "voetstoots" (as-is), but sellers must disclose known defects. Compliance certificates (e.g., electrical) are usually required. It's important to check for any property encumbrances. Both buyer and seller must comply with FICA regulations.
• Legal Assistance Using a qualified conveyancing attorney is highly recommended for expert guidance and to protect your interests. Other legal professionals may be needed for complex transactions.

If you're dissatisfied with the service you've received from your conveyancer in South Africa, you have several options.  First, try discussing your concerns directly with the conveyancer to see if the issues can be resolved.

If that doesn't work, you can lodge a formal complaint with the Legal Practice Council (LPC), the governing body for attorneys in South Africa.  Be sure to document your concerns clearly and provide any supporting evidence.

If you are the buyer, and the conveyancer was appointed by the seller, and you are not satisfied with their service, you can request a change of conveyancer.  However, this requires the seller's agreement. If the seller refuses, you may need to negotiate or seek legal advice from Aucamp Attorneys to discuss your options.

A transfer attorney handles the legal process of transferring ownership of immovable property (real estate).  Their responsibilities include drafting all necessary documents, communicating with all parties involved in the transaction (buyer, seller, banks, etc.), and registering the transfer at the Deeds Office.
 

A title deed is the official legal document proving ownership of a property in South Africa. It includes details like the property's size, location, and any restrictions on its use.  A conveyancer, a specialized attorney, manages the transfer of this title deed from the seller to the buyer during a property transaction.  This involves ensuring all legal requirements are met and correctly registering the change of ownership at the Deeds Office.  Essentially, the conveyancer oversees the entire legal process of transferring property ownership, including checking for any legal issues affecting the property and ensuring all paperwork is correctly completed.

In South Africa, the seller of the property typically chooses the conveyancing attorney. This practice stems from the seller's legal responsibility to ensure the property's title deed is legally transferred to the buyer.  By selecting the conveyancer, the seller takes ownership of fulfilling this obligation, guaranteeing the property is transferred free of encumbrances and according to the sale agreement's terms

Most "inter vivos" trusts (created during the founder's lifetime) can be amended. However, the process depends on the Trust Deed itself, the Trust Property Control Act, and common law principles.
 

Yes! Aucamp Attorneys provides expert legal assistance with all aspects of Trust Deed Amendments, including:

• Reviewing Trust Deeds.
• Drafting amendment agreements.
• Assisting with court applications.
• Ensuring compliance with the Trust Property Control Act.
• Assisting with reporting requirements to the master of the high court.
   

Contact Aucamp Attorneys for a consultation. We will assess your specific needs and guide you through the process, ensuring your Trust Deed remains aligned with your intentions and compliant with South African law.

There are three primary methods:

• Amendment Agreement: Signed by the founder (if alive) and trustees, and potentially beneficiaries.
• Amendment Clause: Following the procedure outlined in the Trust Deed's amendment clause.
• Application to the High Court: Necessary when the founder is deceased or the deed is silent on amendments.

Recent amendments, effective from April 1, 2023, focus on increasing transparency and combating money laundering. Key changes include:

• Increased reporting requirements for beneficial ownership.
• Stricter penalties for non-compliance.
• Increased duties for trustees.

These changes may necessitate amendments to ensure compliance.
 

Non-compliance is a criminal offense, which can result in fines of up to R10 million or imprisonment of up to five years, or both.
 

A beneficial owner includes:

• The ultimate beneficiary.
• Persons exercising effective control.
• Founders.
• Trustees.
• Named beneficiaries.
   

A Trust Deed Amendment is a legal process that changes the terms and conditions of an existing trust deed without creating a new trust. It allows for modifications to beneficiary designations, trustee powers, administrative provisions, and other stipulated conditions, ensuring the trust remains relevant and compliant.
 

The Master has a supervisory role, requiring notification and registration of certain amendments, particularly those involving trustee changes. Recent legislative changes have also increased the reporting requirements for beneficial ownership.
 

This depends on several factors:

• If the founder is alive, their consent is usually required.
• If beneficiaries have accepted benefits from the trust, their consent may be necessary, especially if the amendment affects their rights.
• The Trust Deed itself may specify who needs to consent.
• The recent ammendments to the trust property control act place a large emphasis on the disclosure of beneficial owners, and so they should be considered.
   

You might need to amend your Trust Deed due to various reasons, including changes in:

• Family circumstances (births, deaths, marriages, divorces).
• Financial circumstances.
• Legislation (especially recent amendments to the Trust Property Control Act).
• Beneficiary needs.
• Trustee roles and responsibilities.
   

Yes, there are typically ongoing costs, which can vary depending on the complexity of the Trust and the services required. These may include:

• Trustee Fees: If professional Trustees are appointed.
• Accounting and Audit Fees: For financial record-keeping and compliance.
• Tax Advice Fees: To ensure tax compliance.
• Legal Fees: For ongoing advice or amendments to the Trust Deed.

While there are costs, the benefits of a well-structured and managed Trust often outweigh these expenses, particularly in terms of asset protection and long-term planning.
 

Yes, while you relinquish legal ownership of assets placed in the Trust, Founders can retain a degree of influence.  This is typically achieved through:

• Detailed Trust Deed: Clearly outlining your wishes and guidelines for Trustees.
• Letter of Wishes (Non-Binding): Providing guidance to Trustees on your preferences and intentions (though not legally enforceable).
• Appointing Yourself as a Trustee: While you cannot be the sole Trustee and Beneficiary, you can be a co-Trustee to maintain some involvement (while still including independent Trustees for proper governance).

Trusts offer numerous advantages:

• Asset Protection: Potentially safeguards assets from creditors and legal claims.
• Estate Planning Efficiency: Can streamline estate administration and potentially reduce delays and costs associated with probate.
• Control and Flexibility: Allows you to dictate how your assets are managed and distributed, even in the future.
• Confidentiality: Trusts can offer a degree of privacy compared to Wills, which become public documents.
• Long-Term Asset Management: Provides a structure for managing assets over extended periods, across generations.
   

The most common types of Trusts include:

• Inter Vivos Trusts (Living Trusts): Created during your lifetime and registered while you are alive. Often used for asset protection and estate planning.
• Testamentary Trusts (Will Trusts): Established within your Will and coming into effect only after your death. Primarily used for estate planning and providing for beneficiaries in your Will.
• Discretionary Trusts: Give Trustees broad discretion in deciding how and when to distribute Trust assets to beneficiaries.
• Fixed or Vested Trusts: Define specific benefits for beneficiaries, with less Trustee discret

Trusts have specific tax implications in South Africa, distinct from individuals or companies.  Taxation can be complex and depends on the type of Trust and the income generated.  It's essential to seek expert tax advice regarding:

• Income Tax: Trusts are taxed on income, but the rate may differ from individual tax rates.
• Capital Gains Tax (CGT): CGT applies to the disposal of Trust assets.
• Donations Tax and Estate Duty: Implications for transferring assets into the Trust and upon distribution.

Aucamp Attorneys can advise you on the tax aspects of Trusts in conjunction with tax specialists, ensuring tax-efficient Trust structuring.

Simply put, a Trust is a legal arrangement where you (the Founder) transfer assets to Trustees who manage those assets for the benefit of designated Beneficiaries, according to the terms set out in a Trust Deed.  People set up Trusts for various reasons, including:

• Asset Protection: Shielding assets from creditors or potential future liabilities.
• Estate Planning: Managing and distributing assets according to your wishes after your passing, potentially avoiding probate delays.
• Protecting Vulnerable Beneficiaries: Providing for minors, disabled individuals, or those who may not be able to manage assets themselves.
• Tax Efficiency: In some cases, Trusts can offer certain tax advantages (it's important to seek professional advice on specific tax implications).
• Business Succession Planning: Ensuring the smooth transfer and management of a business across generations.
   

Trustees are crucial as they are legally responsible for managing the Trust assets for the Beneficiaries' benefit.  Trustees should be:

• Trustworthy and Ethical: Acting in the best interests of the Beneficiaries is paramount.
• Competent and Responsible: Able to manage assets and handle administrative tasks.
• Understanding of Fiduciary Duties: Aware of their legal and ethical obligations.
• Trustees have a legal duty to manage the Trust in accordance with the Trust Deed and relevant laws.  You can appoint family members, trusted friends, or professional Trustees.  Often, appointing at least one independent Trustee is advisable.
   

Generally, a trust can be amended, but the process can be complex and may require court approval, especially if beneficiaries' interests are affected. Termination usually occurs when the trust's purpose is fulfilled or after a specified period.