Frequently Asked Questions

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

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.
 

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.

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.
 

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 
 

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.

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.

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.
 

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.”

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.

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.

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!!!! 
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

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.

It all depends on the authority requesting the notarised document.

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.

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.

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.

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).

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. 

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

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.

A will dictates how your assets are distributed after your death, while a trust allows for ongoing management of assets, even during your lifetime. Trusts can offer more flexibility and control over asset distribution than wills. 

The trust deed outlines how assets will be distributed after the founder's death. They may be distributed immediately, held for a specific period, or managed for the beneficiaries' benefit according to the trust's terms.   
 

The trust deed is the legal document that governs the trust. It outlines the terms and conditions, including the purpose of the trust, the beneficiaries, the trustees' powers and responsibilities, and how assets will be distributed. It's crucial for the trust's proper functioning. 

A trust is a legal arrangement where assets are held by a trustee for the benefit of beneficiaries.

Reasons for setting up a trust include asset protection, estate planning, minimizing estate duty, providing for beneficiaries (especially minors or those with disabilities), and ensuring smooth succession of assets.   
 

Anyone can be a trustee, including family members, friends, or professionals (like attorneys or accountants). Trustees must be competent and trustworthy. Consider the complexity of the trust and the beneficiaries' needs when choosing trustees.
 

No. The procedures that apply in the winding-up of a close corporation are similar to those that apply in relation to companies under the Companies Act, 2008 and the Companies Act, 1973.

Statutory obligations continue once the liquidator becomes the representative taxpayer. The liquidator, as the representative taxpayer is required to submit all outstanding returns in respect of applicable tax types.

If a liquidator fails to comply with the requirements of the Income Tax Act and the Tax Administration Act relating to a company or
close corporation in liquidation, that person could be held personally liable for any tax payable in representative capacity. Such liability will arise if the liquidator alienates, charges or disposes of the income in respect of which the tax is chargeable, or disposes of any fund or money that is in that person’s possession from which the tax could legally have been paid

The liquidation of a solvent company results in the dissolution of the company and the removal from the companies register. Once the winding-up process is completed, the Master must file a certificate of winding-up of the company in the prescribed form. Once the Master’s certificate is received, the Companies and Intellectual Property Commission (CIPC) records the dissolution and removes the company from the companies register.
 

From the commencement of the winding-up, all the powers of the directors or members of the company or close corporation concerned shall cease, except insofar as their continuance is sanctioned by the liquidator or the creditors in a creditors’ voluntary winding-up or by the liquidator or the company or close corporation in a members’ voluntary winding-up.
 

Under section 4(1)(a) of the Companies Act, 2008 a company satisfies the solvency test at a particular time when considering –

• All the reasonably foreseeable financial circumstances of the company at that time;
• The assets of the company, as fairly valued; and
• Such assets are equal to or exceed the liabilities of the company, as fairly valued.

The same test for solvency will apply to a close corporation.