ESTATE AGENTS BEWARE! PROPERTY PRACTITIONERS BILL IS COMING

 

 

ESTATE AGENTS BEWARE! PROPERTY PRACTITIONERS BILL IS COMING.

Estate Agents need to be aware that on 31 March 2017, the Human Settlement committee gazetted for comment the Property Practitioners Bill which is set to replace the Estate Agency Affairs Act. The Bill is getting some momentum and there seems to be no doubt that it will be passed into law. What the Bill aims to do is to transform the property market and provide good regulatory mechanisms.

One of the big changes the Bill has presented is the definition of a property practitioner. The Bill has used the expanded term property practitioner to cover the wide range of people involved in the property business. The Bill includes estate agents, bond brokers, property valuators, home inspectors, property managers and developers in its definition of a property practitioner. The Bill will therefore apply to all the property practitioners as defined in it.

The Bill introduces as one of its new features a new regulatory body which will be replacing the Estate Agency Affairs Board established by the current Act. The Bill refers to this body as Property Practitioners Regulatory Authority and it will regulate the conduct of all property practitioners. The Bill further establishes a Property Practitioners Ombuds Office which will consider and provide resolution mechanisms to complaints brought forward by the public against property practitioners.

One of the major concerns with regard to the Bill is the extended powers of inspectors. The Authority are given the powers to appoint inspectors who will go around and determine whether the practitioner has complied with the rules. It appears that the Bill confers on inspectors the power to enter the premises of the property practitioner who has not complied with the Act and to seize and retain or seize documents without a warrant.

Property practitioners are still required to hold and have a valid Fidelity Fund Certificate before they can earn commission for their estate agency services. The Bill goes on further to state that commission earned by a property practitioner who is without a valid Fidelity Fund Certificate must be refunded, on demand, to the payer thereof.

In terms of disqualification from obtaining a Fidelity Fund Certificate, the Bill has basically retained all the requirements of the current Act and added a few like requirements having a valid BEE certificate and a tax clearance certificate.

In terms of the Bill, property practitioners are required to keep records and any other important documents for a period of 10 years. Further to that, a seller would need to furnish the property practitioner with a mandatory discloser form before the property practitioner may take a mandate.

The Bill goes on to list further requirements in respect of the property practice and it is quite important for every property practitioner to know them so as to avoid getting on the wrong side of the law. There are some exemptions that have been introduced which you will need to consult an attorney in respect of and to find out if they apply to you.

 

For more information, contact Charmaine Schwenn

charmaine@schwenninc.co.za

www.schwenninc.co.za

031-0030630 / 083 789 7638

THE SMALL CLAIMS COURT

 

 

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.

Business Contracts – What You Need To Know!

Schwenn-Inc-Business Contract

If you are in business or contemplating going into business, you need to have an understanding of Contract Law and have a trusted advisor who can check all contracts before you sign them.

Your contracts are likely to vary from leases, employment contracts, credit applications to Service Level Agreements, Supply Agreements and more.

If you are a partnership or company, you will likely need Partnership Agreements and associated documents.

A contract is a binding legal agreement between two or more people (natural or juristic (being companies or trusts)) that can be enforced legally with legal remedies.

These contracts regulate the business relationship between the parties and what rights and responsibilities there are and with whom they lie.

Requirements for a Legally Binding Contract

Contracts are complex and it is always better to engage an expert or trusted advisor to draw it and also check if before you sign.  You need to ensure not only that all your rights and interests are fully protected, but that you understand precisely what you are signing.

Legally binding contracts must contain four important elements:

  1. A clear offer.  This defines what is proposed and what the terms of performance are;
  2. An acceptance of the precise terms of the offer;
  3. Both parties must intend to create a legally binding contract;
  4. The “consideration” must also be specified eg. cost.  This can take the form of money, items, services, actions etc.

What you need to know:

  • Ensure the parties are properly defined – is it you or your company contracting?
  • Have the contract in writing!  As much as this may not in every case be a legal requirement, it certainly is worth its weight in gold if there is a dispute or miscommunication later.
  • Have a non-variation clause in written contracts so that no verbal representations vary the written agreement

Contact: Charmaine Schwenn

031 003 0630 / 083 789 7638

charmaine@schwenninc.co.za

www.schwenninc.co.za

Dagga and the law.

 

 

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.

Everything you need to know about fees

 

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.

NOT PAYING MAINTENANCE COULD LAND YOU IN JAIL

 

 

NOT PAYING MAINTENANCE COULD LAND YOU IN JAIL

 

A Durban businessman was convicted and received a four and a half year prison sentence by the Krugersdorp Magistrates Court for failing to pay maintenance to his wife and children.

Maintenance is the financial assistance of someone else and is usually made an order of court. According to the Times Live, the father is a director of a big restaurant franchise and lived the high life while the mother and children were living in abject poverty.

The man and his ex-wife divorced and in terms of the divorce settlement the man had to pay R24 000 every month for five years to his ex-wife and R10 000 every month for child maintenance for their children.

The man defaulted in just three months after the High Court order and according to Times Live, the evidence before the court was that the man had been living the high life and concealed his assets.

Defaulting in maintenance payment means that the person is in contempt of a court order and can be criminally convicted, as was in this case. The consequences for non-payment can be:

  • a court order for civil execution
  • a warrant for execution in terms of section 27 of the Maintenance Act
  • a garnishee order in terms of section 28 of the Maintenance Act

After a three year legal battle, the ex-wife got a writ of execution and the man’s property was attached which allows the wife to sell them and recover more than a million rand.

The Krugersdorp Magistrate refused to grant the man leave to appeal the conviction and refused to hear an application for bail pending a petition to the Chief Justice for permission to appeal.

The judgment passed by the lower court is quite unusual for such an offence, however the general public has become weary of maintenance defaulters.

In light of there being so many maintenance defaulters and in trying to curb that, an amendment was made to the Maintenance Act to include parent’s maintenance obligation as part of their credit profile. So as from September 2015, people with arrear maintenance can get bad credit records and get blacklisted.

Fight Sexual Harassment.

 

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.

 

Low income earners get their debt written off

 

DEBT RELIEF BILL: LOW-INCOME CONSUMERS TO HAVE THEIR DEBTS WRITTEN-OFF

The portfolio committee on trade and industry proposed an amendment to the National Credit Act in order to provide debt relief to South Africans struggling with debts.

The Draft National Amendment Bill was published in the Government Gazzette on 24 November 2017 and has received much attention from different industries, including business, banking and government. Of concern is the possible effects the proposed amendment will have on these industries and how it will impact our economy.

In terms of the Bill, poor and low-income consumers who earn less than R7.500.00 per month and who have a total of not more than R50 000.00 of unsecured debts may apply, only once, to the National Credit Regulator (NCR) for debt intervention. This application is done by the consumer personally and is only for debts incurred up to 24 November 2017.

Once the consumer has made the application, the NCR will make a determination of whether the applicant requires the intervention or not. If the NCR is of the view that the applicant does require the assistance, a member of the National Credit Tribunal can suspend all credit agreements in part or in full. Further, if it appears that the financial situation of the consumer is not improving, the consumer can have his debts written off.

In terms of the World Bank report, South Africans are the world’s ‘biggest borrowers’ and cannot manage their debts responsibly. About half of credit-active consumers have impaired records. With so many people struggling with debts and qualifying for debt intervention in terms of the Bill, it raises concerns about the impact this will have for businesses and credit providers who followed the right procedures in granting credit.

Essentially what the Bill says is that if you once bought a Television set and a washing machine under credit when you could afford it but later lost your job or got more responsibilities, you can have your debts under those credit agreements extinguished but still keep the goods purchased in terms of the agreement. This differs entirely from what the NCA seeks to achieve, which is promoting fair, competitive, sustainable, responsible, efficient, effective and accessible credit market and industry; and to protect consumers while balancing the rights of suppliers.

The Bill also has the potential of deterring credit providers from giving credit to low-income consumers as there is a risk of them being written-off. The effect of this is that we will have consumers who are denied access to credit even if they have maintained good credit records, purely on the basis of being low income earners.

Further concern is that the Bill will encourage irresponsible behaviour by consumers who will be under the belief that they can have their debts extinguished.

Although the Bill is supposed to provide hope for low-earning consumers who are struggling to pay off their debts, it will have far-reaching consequences especially for our economy. With the Bill being at its final stages, retailers should brace themselves for a possible further cut of debts owed to them.

The fight against Domestic Violence

PROTECTION ORDERS AND THE FIGHT AGAISNT DOMESTIC VIOLENCE

 

Family Law constitutes a large part of our practice at Schwenn Incorporated. Many cases dealing with divorce and the maintenance of children unfortunately include or coincide with protection orders.

Unfortunately Domestic Violence incidences have not decreased but we have seen a substantial increase.

 

What is the definition of domestic violence?

This is any violence by one person onto another in a domestic setting such as a marriage or cohabitation. The list includes but is in no way limited to: physical, sexual, psychological, financial and verbal abuse.

 

What are the statistics?

One in five South African women over the age of 18 years have experienced some type of physical violence. Those odds increase in the poorer communities where one in every three women has been a victim at one time or another in their lives.

A survey shows that 17% of women between the ages of 18-24 years have experienced violence just in the 12 months before the survey was taken. Women between the ages 65 years and older report in at 16.7%.The worst percentage rate however has to be that of separated and divorced women which comes in at 40%.

The SAPS report that 73.54% of crimes are against women, whether that be murder, rape or assault. The province with the highest percentage of domestic violence is Eastern Cape leading at 32%.

 

In any case involving Domestic Violence, the victim (complainant) must apply for a protection order to ensure that they are safe during the divorce or maintenance process.

 

How does one take out or apply for a protection order?

  1. The complainant must depose to an affidavit and complete an application at the relevant court;
  2. Supporting Affidavits by those who may have been witness to the abuse must also be made;
  3. These documents and any other supporting documents must be handed to the clerk of the nearest court;
  4. The application for a protection order is not only linked to the complainant but can be used for anyone who has an interest such as a mother and a child;
  5. Once the court has granted the application for a protection order, this is served by the SAPS on the perpetrator;
  6. In urgent situations, the court may issue a warrant of arrest simultaneously, to ensure the protection of the complainant and my affected persons.

 

The Domestic Violence Act puts pressure on government officials such as the police and the courts to follow through with domestic violence cases which makes them less likely to be withdrawn or ignored as an effort to make sure that no one falls through the proverbial cracks.

 

How we can help you:

Domestic violence is a criminal offence. As attorneys we can assist you with claims for damages, whether that be for medical expenses, damage to property or to a third party.

We at Schwenn Incorporated can help you claim your dignity back and help you stand up against abuse. Remember that all information is confidential and privileged. Call us today on 0315631874/0837897638 or email us at Charmaine@schwenninc.co.za for more information.