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Can a minor child act as a witness and testify in court?
Most parents might be asking themselves a few questions about a minor child having to appear at court as a witness and if a minor can appear as a witness what the legal position is.
It important to know what a minor child is. A minor is a child under the age of 18. He/ she lacks full legal capacity and cannot litigate or enter into a contract without the assistance of a guardian.
What is expected from a minor child in court?
The Common Law provides that every child may testify provided that:
A child’s evidence must be approached with caution and the court must be satisfied regarding the competence of the child to give evidence. Like all other witnesses’ children must be sworn in before they testify.
What happens if a child is unable to understand the nature of the proceedings?
If the child is unable to understand what it is to take the oath the court is allowed to admonish the in terms of Section 164(1) of the Criminal Procedure Act. This means that the court will make a formal statement to caution the child about his/ her testimony and to make sure that the minor child fully understands the oath. The Judge or Magistrate interviews the child to establish if he/she is competent to give evidence. This generally takes place in Judges’ chambers or in closed court rooms.
How must the court deal with the evidence?
Once competency is established the court will allow the minor child to lead evidence in court. The Criminal Law Amendment (Sexual Offences Act) 32 of 2007 enacted certain rules about how the court must deal with evidence of a child complainant in sexual matters when the court is evaluating the evidence of a child.
In S v QN 2012 (1) SACR 380 T the court remarked that it is not improper to rely on the evidence of a minor child. In doing this the court should look at whether, the child was clear and satisfactory in all material aspects.
Children as young as 4 years can testify in court whereas in some cases you find that the child is too young and immature to give evidence in court. You might notice that in criminal cases matters court will proceed in closed court or have the perpetrator removed from court to enable the child to give evidence without any fear. A social worker must also be appointed to assist in sexual offences involving a minor child to take the child into an isolation room and allow the child to demonstrate and tell what really took place on the day of the incident. Such evidence is recorded and used in court.
In all essence a minor child can testify as a witness in court provided the above requirements are met. Protect a child and prevent crime.
Should you have any questions do not hesitate to call us on 031 003 0630 or email Jessica@schwenninc.co.za
Written by: Portia Dlamini
Regulations under alert level 3 and 4 are declared unconstitutional:
On the 2nd of June 2020 the Gauteng High Court handed down judgment declaring that the regulations under alert level 3 and 4 to be unconstitutional but many people are left confused wondering:
It is important to start, like any story, at the beginning and the same can be said when it comes to the enactment of laws and regulations.
Who makes laws in South Africa:
Parliament has the necessary legislative powers to make law, amend laws, and repeal laws. These laws however are voted on by parliament as a whole and need cabinet approval before they can come into existence. Most laws have to go through a strict step by step process before they are enacted.
How were the regulations under alert level 3 and 4 enacted?
The state of disaster which was declared by the President this allowed the government to enact the regulations under the Disaster Management Act.
These regulations were unilaterally enacted. Meaning it skipped the normal strict process of enactment due to the fact that it was an emergency situation and there was no time for due process.
Why the regulations were considered to be unconstitutional:
In certain instances, the government can limit citizens right under the constitution if such limitation is rational.
However, the court, in this case, has found that these regulations limit citizens rights to an extent that is not rational and can be seen as contradictory such as (to list a few):
What happens now:
The minister has 14 days from date of judgment to make the necessary changes to the regulations to abide by the court’s decision however, it is important to note that the minister can appeal this decision to a full bench of the High Court or take the matter to the Supreme Court of Appeal for hearing.
For now though as citizens we are to abide by the regulations until we are told otherwise because at present those are the laws still before us.
Reining of power by the government:
There is a very interesting interview done on 5fm radio with Eitan Stern from Legalese where he outlines governments power to sometimes to do as they deem fit without fully taking into account the citizens of the country and likened his example loosely on what is happening in the United States where the government is forcing police and military to break up protests against racial violence which in effect is creating more violence.
He states that although the two countries are in two very different situations the use of power used by the government, although the intentions may be good for its citizens, has in many circumstances made the relationship of trust with citizens and government worse.
This can be seen in our country by the lack of communication, the executive decisions by the National Comand Council, and the gross misuse of power by certain ministers.
If you would like more news on what is happening in our country and any laws you may be confused about please feel free to contact us today on 031 003 0630 or email us at Charmaine@schwenninc.co.za .
Rental Collections and Evictions during COVID 19.
Section 26 of the Constitution:
This section stipulates that everyone has the right to access adequate housing and that it is the duty of the state to provide its people with the necessary resources to have said access.
We, however, know that in South Africa there is already a high percentage of our population that do not have adequate housing and we also know that our government does not have the necessary resources to rectify this epidemic.
With COVID 19 on the rise and many people being retrenched the number of evictions and homelessness it seems will only increase.
Rental Collection:
In normal situations, there are two or more parties to a lease agreement whether it be commercial or residential. If the tenant defaults on their monthly payments the owner would give notice of default, place the tenant in breach, cancel the agreement, and then would sue the tenant for arrear rental.
However, these times are different in that no one could have foreseen the possibility of a virus affecting our lives so suddenly and having such a drastic impact.
Within a contact, there may be two clauses that make provision for such unforeseen circumstances.
Solutions to non- payment:
Your agreement should lead you in terms of the path you can take however, these are difficult times and in saying that this leaves the door to communication and negotiation to take place. The following have been brought up lately as the main solutions:
It is important that everything is agreed in writing between the parties and that there is compromise during this time as litigation will indefinitely be expensive if not solved amicably.
Evictions:
Previously the Disaster Management Act had stated that during lockdown no one could be removed from premises, this has since been repealed.
According to Regulation 19 of the Act one can Evict a tenant at any time however said eviction will have to be stayed until the end of alert level 4 which has yet to be announced and will need to be stated in the PIE application.
For any questions on property law whether you are a tenant or an owner please contact us on Charmaine@schwenninc.co.za or call us on 031 003 0630.
It might be the right time to consider a business merger.
Most businesses have been struggling to stay afloat and some have considered cutting a number of their employees while some are totally closing down and not surviving the COVID 19 lockdown period.
Before deciding on totally closing down your business or company you might want to consider a business merger with a company or business that offers or renders the same goods and services like yours, or products that supplement or complement your existing business.
What is a Merger?
A Merger takes place when two independent companies combine their businesses which takes place by mutual consent or through a hostile takeover. From an economic perspective, there are three kinds of mergers that one might consider. The horizontal, vertical, and conglomerate mergers.
What is a horizontal merger?
A merger between firms operating on the same level of supply chain selling substituted products in the same geographic area. These include competitors like clothing stores. This type of merger is the most popular as it involves businesses and companies applicable in our daily lives.
What is a Vertical Merger?
A vertical merger entails the integration of companies or parties involved in different stages of the supply chain of a common product or service. An example of vertical integration would be a business merging with its supplier.
What is a Conglomerate merger?
Conglomerate merger covers all other types of mergers that are neither horizontal nor vertical in nature. These are transactions that take place between parties that have no apparent economic relationship. An example of a conglomerate merger would be a mining company and motor manufacture.
How are mergers categorized in terms of the Competition Act.
The Competition Act classifies mergers into 3 categories on the basis of total annual turnover assets of parties to the merger – Intermediate, Large, and small.
What constitutes an Intermediate Merger?
The combined annual turnover or assets of the acquiring firms and target firms in, into or from South Africa is less than R60 million or more.
The annual turnover or assets of a firm into or from South Africa is less than R80 Million.
What constitutes a larger merger?
The combined annual of assets of both the firms must is equal to or more than R6.6 million and the annual turnover or value of the transferred/ target firm is at least R190 million
There are many reasons why it might be a good idea to consider a business merger other than completely shutting down your company.
What constitutes a small merger?
A small merger is classified in terms of Section 13(2) of the Competition Act as a merger that does not fall under the intermediate and large mergers.
Do I have to notify the Competition Commission if we decide to embark on a business merger?
Yes, the Competition Commission must be notified of an intermediate and a large merger. A small merger can be notified of voluntarily within 6 months after implementation.
You might want to consider a business merger before concluding on shutting down your business or company completely. Gather as much information even if it’s a small merger but it’s worth keeping your name in the business industry and helping your business makes it through the COVID-19 period.
For any more questions you would like answered about your business please contact us today on Charmaine@schwenninc.co.za or 031 003 0630.
Anatomical Donations
Donations of a body or tissue from a body is usually done for two reasons:
Donations can only be given to beneficiaries who have licenses and are authorized to deal with bodies and tissue such as hospitals or universities that are involved with medical and or dental training.
Requirements for donations:
The biggest requirement for anatomical donations is consent. The consent of the person must be made when that person is competent when giving their consent which can be done in one of the following three ways:
When the donor did not express consent:
There may be instances where the donor did not express consent for a donation. In these instances, his or her spouse, major child, parent or guardian or major sibling at the time can make the decision to give consent on behalf of the donor.
What if no family can be found:
There are provisions that allow a district surgeon to give consent for a donation if the deceased’s family cannot be located and he/she is convinced that reasonable steps were taken to try and locate said family members. Two doctors also need to confirm in writing that the tissue of the body of the deceased is required immediately to save the life of a recipient or in the case of eyes their sight.
Void donations:
Donations will be void if the donor or any other person negotiates and or receives compensation for any anatomical donation.
Can you revoke your consent:
Yes, consent can be revoked the same way it was given (in writing, signed and witnessed) or simply the document giving consent can be destroyed.
For more information on the rights to your body and the law of persons contact our offices today on 031 003 0630 or email us on Charmaine@schwenninc.co.za.
Alternative Dispute Resolution : A possible Time and Cost-Effective Solution to Court Litigation
Traditionally, dispute resolution is effected through the relevant court having jurisdiction over the matter. This can entail delays, as our court rolls are very full. Fortunately, disputes can still be settled formally without undergoing the expense of a trial.
We always consider Alternative Dispute Resolution (ADR) as the first possible step in any dispute and conflict resolution scenario, especially if the parties have a contract that provides in detail how and when ADR should or could proceed. (Another reason to see your attorney BEFORE you sign any contracts).
This can be an appealing option for all parties, ADR encompasses the processes of resolving legal disputes as alternatives to the traditional time consuming and costly court litigation processes.
An ADR Process That Works for Your Dispute
ADR includes different mechanisms or processes to resolve disputes instead of proceeding with court litigation.
There are various methods of alternative dispute resolution in business, namely mediation, arbitration, and facilitation.
Mediation
The mediator helps parties to discuss their disputes in a controlled and safe environment to find mutually agreed solutions. The disputes usually involve legal issues, but the mediator does not decide the outcome. The goal of the mediation is to try to find a win/win solution if possible and allows more room to be creative with solutions rather than the traditional win/lose court model.
Arbitration
Your attorney will represent you at the Arbitration and lead your case before the arbitrator. The arbitrator listens to parties’ conflicting versions in a dispute and decides on how it will be resolved. This is similar to a court procedure but it’s less formal, more flexible, and usually much quicker. The arbitrator makes a win/lose decision-based on the merits of both party’s evidence.
Facilitation
The facilitator helps to resolve problems between people usually involving dysfunctional inter-personal or working relationships. The facilitation can be between two parties or amongst multi-parties.
What Are the Benefits of Alternative Dispute Resolution?
The common primary advantage is that ADR is usually much quicker and can be (in the long run) a less costly way of resolving disputes compared to court litigation.
What Are the Disadvantages of Alternative Dispute Resolution?
Alternative Dispute Resolution services are usually provided by professionals in private practice for a fee.
The parties usually agree to share the costs of the ADR practitioner equally. This is unlike the usual court process, where each party pays only their own attorney and the services of the Judge or Magistrate are provided by the state.
However, the shared costs of ADR processes are usually much less than the costs of legal fees in protracted court litigation. In our opinion, the value and speed of an ADR produced solution to a dispute far outweighs the costs of the ADR service provider.
We will help you make an informed decision on the merits of participating in an ADR process before agreeing to do so. This includes information to make a cost-benefit analysis of whether to opt for ADR instead of court-based litigation.
Want to know more? Contact Charmaine Schwenn : charmaine@schwenninc.co.za : 031-0030630
According to our law, what happens when someone disappears but there is no evidence to prove their death?
The disappearance of a person creates a big problem namely because:
In the first case, one would need to apply to the High Court for an appointment of a Curator Bonis to oversee and distribute the estate of the missing person while the person is missing. However, for the last two scenarios, which presume the death of the person, you would need to make an application to the High court for an order that the missing person is to be presumed to be dead.
The Presumption of death can be done in two ways:
South African Courts unlike English Courts don’t solely look at the period of time that someone is missing but look at many factors which someone went missing such as:
It is important to note that this order is rebuttable and can be set aside as it is a presumption of death and not a guarantee of death.
It is also to be kept in mind that there are consequences to the order of presumption of death such as:
For more information on the law of persons please contact our offices today on 031 003 0630 or email us at Charmaine@schwenninc.co.za
Consumer Protection Act on overcharging and excessive pricing of goods and services during the lock down period.
After the announcement that our country might go on a lockdown a few businesses, retail shops and companies have been engaging in the practice of price increment and excessive charging of goods and services. This is based on the fact that most goods and services have been on higher demand as people are preparing for the lockdown. The excessive charging of goods has been mostly spotted on food items and cleaning essentials including bath soaps and sanitizers.
Fairness
The Competition Commission promotes a fair, accessible and sustainable market for consumer products and services and the Consumer Protection Act prohibits certain unfair marketing business practices.
Prohibitions
Suppliers are not permitted to charge unfair prices for the same goods and services as this allows competitors in the market to agree on price-fixing rather than competing with each other. As a consumer, you have the right to be treated equally, irrespective of gender, race, socio-economic status or geographical location.
Your Right to fairness
Your right to fair and reasonable prices gives rise to your right to lodge a complaint against any business or company unfairly charging excessive prices and misleading consumers as means of competition or making up for the loss on quite seasons. The National Consumer Commission in connection with the Equality Court allows for consumers to approach it for complaints against prohibited and unfair practices.
Reporting cases
Should you find yourself facing a situation of unfair excessive pricing of goods, the Competition Commission has appealed that each consumer faced with the situation should not hesitate to report each case of unfair treatment against consumers. Our firm promotes equality and fair treatment of consumers.
For more information contact Charmaine on charmaine@schwenninc.co.za.
Written by Portia Dlamini.
Building Alterations: When do you need Municipal approval?
Large and small building works are commonplace in most neighbourhoods. Do you know when you are required to have plans drawn up and obtain municipal approval for your alterations at home?
You will require plans to be drawn up, quite obviously for new homes. You will also need plans drawn up for additions to your existing building structure or alterations to your existing building structure. This includes your exterior wall.
What may not be so obvious is that you will need building plans drawn up for the following internal alterations:
If you undertake minor building works, you still need to contact the building inspectorate at your local municipality who will inspect and provide the necessary exemption. Sometimes you may need to submit a drawing. You should not require building plans to be drawn for the following minor building works:
It is always recommended that you employ a qualified professional to assist you with any alterations to your property and they should be able to advise you if plans are required. As the owner of the property, it is completely your responsibility to ensure that everything is done properly. Please remember that there are potential criminal implications if you go ahead with building on your property without the correct approval in place. You should always contact your local Building Inspectorate to ensure that the correct procedures have been followed before you start any building works.
For any information please do not hesitate to contact Liza Bagley on liza@schwenninc.co.za.
Written by Liza Bagley.
Access to children during the national shut down.
We are living through an unprecedented time in South Africa and the world.
An anomaly that now arises is what happens to divorced/separated/unmarried parents and their contact arrangements with their children over the national shut down.
Parents and children have certain rights. You will need to bear in mind, however, that certain rights are restricted in this state of disaster management. There will be limited, if any, access to courts over this time.
Parents should have an arrangement in place in terms of an agreement or a court order. Children moving between their respective parents now becomes potentially illegal.
The line will be drawn at considering their “home” to be the home of the primary caregiver. If the parents have joint primary care, it is advisable that the parents reach an agreement urgently regarding care over this time period, without the need for children to move between homes, except in the case of a medical emergency.
Please remember that maintenance is still payable between the parties, regardless of where the children reside during the shut down period. Any variations of maintenance needs to be by agreement.
For more information contact Liza on Liza@schwenninc.co.za.