THE SMALL CLAIMS COURT:

Most people are unaware of the Small Claims Court and the services that the Court actually provides. There are definite advantages to lodging a claim through the Small Claims Court, as it is an informal and fairly quick process.

WHAT IS THE MONETARY LIMIT IN THE SMALL CLAIMS COURT?

The Small Claims Court deals with claims from R0.00-R15 000.00 (FIFTEEN THOUSAND RAND). Anything over R15 000.00 must be referred to a Higher Court, which we can assist you with.

WHO CAN REPRESENT ME AT THE SMALL CLAIMS COURT?

Claimants at the Small Claims court must represent themselves. Legal representation is not allowed.  The Commissioner that adjudicates the matter will assist the parties, within reason.

WHO CAN INSTITUTE A CLAIM IN THE SMALL CLAIMS COURT?

A person who has a claim to the limit of R15 000.00 may institute a claim provided that they are above the age of 18 years old, or where they are a minor, they are to be represented by a parent or guardian.

It must also be noted that only natural persons can claim and not juristic persons (Companies, Close Corporations, Associations etc. this includes the State).

Most importantly:

WHAT ARE THE TYPES OF MATTERS USUALLY CLAIMED?

• REPAYMENT OF MONIES LOANED;
• CLAIMING FOR GOODS DUE AND OWING;
• CLAIMING FOR MONIES SUCH AS DEPOSITS FROM LEASED PREMISES ETC.;
• CLAIMING FOR DAMAGES.
• CLAIMS BASED ON CREDIT AGREEMENTS.

WHAT MATTERS MAY I NOT CLAIM FOR?

• QUANTUM ABOVE R15000.00;
• DISSOLUTION OF A MARRIAGE OR CHANGE OF STATUS; AND
• ANYTHING INVOLVING WILLS AND TESTAMENTARY WRITINGS.

WHAT WOULD I NEED TO INSTITUTE A CLAIM?

You would approach the court and issue a letter of demand. If the payment has not been made within the 14 days of demand, the court will assist you to prepare a summons and it will be sent by sheriff to be served on the other side. On the court day you must bring proof of service of the summons.

WHAT HAPPENS IN COURT ON MY COURT DATE?

The process is simple. The Commissioner will ask the parties questions and allow each party to tell their side of the story. The Commissioner is a “judge” and will make a decision that is a legally binding court judgment.

WHAT HAPPENS IF THE OPPOSING PARTY DOES NOT PAY?

You can instruct the sheriff, through the court, to attach the assets of the other side and sell them at a sheriff’s auction.

For any assistance in the process (excluding the necessary representation) or any other legal assistance or queries, contact us on 031 003 0630 or Charmaine@schwenninc.co.za.

 

 

DECRIMINALISATION OF CANNABIS (DAGGA) – WHERE IT STARTED

The Constitutional Court handed down judgment in September 2018 on the use and possession of cannabis. The decriminalisation of personal use and possession by the Constitutional Court came as a shock to the people of South Africa and many of them do not know how and why this happened.

The application was initially brought by Prince, a Rastafari who used cannabis (dagga) for religious reasons. Prince’s challenge was directed at the Cape Law Society which found that Prince was not a fit and proper person to be admitted into the attorneys’ profession since he had convictions for possessing dagga and was not going to stop using it.

Prince alleged that the criminal prohibition on the use and possession of cannabis by the Drugs and Drugs Trafficking Act and the Medicines and Related Substance Control Act (the Acts) infringed his right to practice his religion.

The application to challenge certain provisions of these Acts was initially based on religious reasons; however the second High Court application was based on the general prohibition of the use and possession of dagga. The High Court had to examine the right to privacy and other rights such as the right to freedom and dignity.

The Western Cape High Court in March 2017 handed judgment declaring certain sections of the Acts invalid and inconsistent with the Constitution insofar as they limited the use, possession and cultivation of dagga in a private dwelling by an adult.

The High Court’s ruling on the invalidity of certain provisions of the Acts was then referred to the Constitutional Court for confirmation. The Constitutional Court confirmed the order of the Western Cape High Court and declared certain provisions of the Acts to be constitutionally invalid as they infringed on the right to privacy, thereby legalising the personal use and possession of cannabis (dagga).

Concerns about the legalisation of dagga include it being accessible to the youth, the quantity a person is allowed for a person, its effect on a person’s health and that it might encourage or lead to criminal behaviour.

The Constitutional Court saw it fit, having regard of the separation of powers doctrine, to leave it to Parliament to determine the quantity and impose other limitations which it may deem necessary and justifiable.

Police officers are also given discretion to determine whether the quantity of dagga found on a particular individual exceeds the reasonable quantity for personal use and whether that person had an intention to deal in dagga and sell same.

So now it’s up to the legislators to amend the relevant laws (Acts) to give the detail that we need to understand the full extent of the Constitutional Court’s ruling. In making the necessary changes to the legislation, the legislature will need to consider how to ensure that dagga is not used by the youth, how much of it is safe to use, preventing the dealing/selling of it and what punishment should be in place for transgressors.

 

THE AWKWARD COVERSATION OF MONEY BETWEEN AN ATTORNEY AND THEIR CLIENTS:

 

How does one agree to the fees that will be payable?

When a client seeks legal advice, the first thing the attorneys should do is give the client their letter of engagement that sets out how the attorney bills. This creates a legal contract between the attorneys and client and ensures that the client understands what to expect.

 

Are deposits usually paid?

Deposits are usually required from clients in order to make sure that fee’s and disbursements are covered.

 

How does an attorney calculate their fees?

Attorneys calculate their fees usually taking into account the following factors:

• Experience;
• Education;
• Risk;
• Amount of work needed to be done;
• Time periods that the work must be completed in;
• The urgency of the matter;
• The difficulty of the work; and
• Whether the attorney specializes in that field of law required.

 

What is an hourly rate?

An attorney’s hourly rate will depend on the attorney, who will take into account what work needs to be done in a matter based on his or her experience with previous matters for example the amount of time to be spent at court as well as drafting and perusing of documents.

The most important factor in an attorney’s hourly rate is usually the amount of knowledge they have and the years of practice they have under their belt.

Often, a more experienced attorney (normally more expensive) may work out more cost effective in the long run, as they are able to deal with matters more expeditiously.

 

What is a contingency fee?

This rarely happens and was previously not allowed in law until recently. The contingency fee agreement is an agreement that an attorney will only charge a client no more then his or her usual rate or 25% of the capital sum awarded. This however is on the condition that the client represented is successful.

An attorney may not wish to engage matters on a contingency basis, as the risk to the attorney is that they are unable to assess the full merits of the matter at the outset.

 

Meaning of certain fee terms used?

1. Pro Bono – this is used when an attorney helps an indigent person who cannot afford legal help.
2. Pro Amico – this is used when an attorney has a special relationship with another person. Fees are not payable but disbursements are.
3. Costs De Bonis Propriis – this is when an attorney acts so negligently that the court shows its frustration that it orders the attorney to pay all the costs out of his own pocket.

 

In conclusion there are many ways in which fees can be calculated at. However, the most important thing is to make sure that you have a proper agreement with your attorney in order to know what fees you are liable for and what you are not.

At Schwenn Incorporated, we pride ourselves in going over and beyond for our clients and in being cost effective but also being able to give our clients work that goes beyond standard. Contact us today for any legal queries on 031 003 0630 or at Charmaine@schwenninc.co.za.

 

ARE YOU OR SOMEONE YOU KNOW A VICTIM OF SEXUAL HARASSMENT?

 

What is sexual harassment?

Sexual harassment can be defined as any conduct of a sexual nature that is unwanted and that makes another person feel uncomfortable.

Sexual harassment can take many other forms such as:

• Verbal;
• Physical;
• Sexual favouritism; and
• Quid pro quo.

What are some examples of Sexual harassment?

If you are unsure what could constitute as sexual harassment some examples are:

1. Any unwanted sexual statements: this would include any dirty jokes, explicit drawings, rating ones sexual performance, comments about one’s body. This can take the form by being verbal or written.
2. Unwanted personal attention: this includes any phone calls, letters and any pressure of dates and unwanted sexual favour offers.
3. Unwanted physical advances: This is the most obvious type. This includes hugging, touching, kissing, sexual assault and fondling.

 

Who can conduct an act of sexual harassment?

It is a myth that only fellow employees or supervisors are the only ones that commit acts of sexual harassment and that the rest cannot be claimed against. In reality the list includes but is not limited to the following people:

1. Owners;
2. Employers;
3. Managers;
4. Supervisors;
5. Employee’s;
6. Job applicants;
7. Clients;
8. Suppliers; and
9. Contractors.

This list then shows that an act can be committed by anyone who has any dealings with the company or business.

 

What is my responsibility as an employee if I am a victim of sexual harassment?

This would be according to the code of good practice of your work place. The consensus between most codes of good practice and the Labour Relations Act states that an employee who either witnessed or is a victim of sexual harassment must report this to the human resources department of their workplace.

This report depending on the severity should usually be done in writing as proof where an investigation can take place wherein the perpetrator can go through a disciplinary hearing where his or her actions are proved.

The consequences of an incident going unreported gives the perpetrator power to continue their actions where it can escalate either on the current or new victim.

 

What are the employer’s responsibilities?

Once the supervisor or employer has become aware of any complaint of sexual harassment must immediately open an investigation to establish the liability of the accused. The employer also needs to ensure the victim that their matter has been taken seriously and that something is being done to establish the accused’s conduct and that if any that the necessary punishment will be given.

The employer usually sits and consults with both the victim and the accused to ascertain the problem and try to find out if there is a way to resolve the issue between the parties.

If it has been established that the employee has indeed committed such an offence then the employer must conduct a disciplinary hearing and depending on the severity the employer must fire the employee.

 

What are my other options?

If a matter has not been resolved in 30 days after the complaint is lodged then a case may be lodged at the CCMA whereby the usual proceedings of Conciliation, Arbitration and Mediation will take place. If the employer has found to be negligent in not resolving the dispute the employer and the accused can be found guilty jointly and severally.

One may also however lay a criminal charge against the accused.

What can Schwenn Incorporated do for me?

Schwenn Incorporated prides itself in helping both individuals and companies so whether you are an employee or employer who needs help whether it is looking at contracts, litigation, holding a mediation or arbitration or drafting a solid code of practice we can help you. You can contact Schwenn Incorporated at 031 003 0630 or contact Charmaine Schwenn on Charmaine@schwenninc.co.za.