Divorce in dictionary

 

When is the right time to get a divorce?

 

As attorneys we often get asked by our clients when the right time is to get a divorce? It’s a difficult question to answer.  We strongly recommend that you get the support and advice to make this decision from a trusted personal advisor, spiritual advisor, family member or friend.

We can help with the “legal” side of the decision – explaining the process to you, explaining the proprietary consequences of the divorce, as well as issues surrounding children and other financial consequences.

What we can say for sure, is that the process is always a “difficult” one, which inevitably gets worse before it gets better. For this reason, you need to ensure that you are resolved, and certain that you wish to take this decision.  We will do all we can to ensure the smooth running of your matter and also that we assist with the constructive resolution of the matter.  We try not “break things” more than they are already broken.   This is not to say that we shy away from a fight, if there is one to be had – on the contrary, we will advise you which fights are worth the fight and we will make sure that your interests are protected in this respect.  However, we believe that our jobs as attorneys are to help you keep the end goal in mind – and to help you get there as quickly and painlessly as possible.

If this is how you wish your matter to be handled and you are sure that you want a divorce, give us a call.

 

Charmaine Schwenn

charmaine@schwenninc.co.za

031-003 0630

GOOD NEWS FOR SINGLE PARENTS:

It was common practice that both parents of children had to submit their income and expenditure to the schools which their children attend.

This was most predominantly used when parents were applying for any exemptions for their children’s school fees.

This was the practice even if the parents were divorced or separated. This posed a lot of stress on the primary care giver of the child when paying for all the child/children’s educational needs in spite of their poor financial disposition.

The stress caused on the parents and children involved has and still is an epidemic that is widely felt especially by single headed households. It has especially become evident that these unneccesary and aviodable stresses filter down to these children.

It has been agreed that something needed to be done in order to give children their inherent right to education as enshrined in the Constitution and The Childrens Act, irrespective of their upbringing and the circumstances.

New law on school fee exemptions:

A new court ruling has ajudicated on this point in an effort to relieve the stress on the single headed households that are looking for the best education for their children.

As aforementioned, it was the status quo for both parents to submit their income and expenditure so that the exemption could be appropriately calculated, which was often at times very embarrassing for all parties envolved as parents would have to show that they were “too poor” to pay the required school fee prices.

The school governing bodies will now be given new and improved criteria in which to follow when they are deciding on which parents should be given such exemptions. This is to give regard to the childs right to good education instead of punishing the child due to the parents inability to pay their fees.

The law previously stated that both parents of a child, whether married or not were jointly and severally liable for their childs school fees. The Supreme Court of Appeal however has ruled that single parents applying for exemptions will be assessed on based on their own individual financial means.

How can one apply and what is the process of obtaining an exemption?:

The parent(s) would be required to contact the school and fill out the necessary paper work. This would include having  to agree to sumbit to a credit check which will confirm  employment details.

The court ruled that parents will not need to disclose their entire financial position to the schools when applying. This saves parents from feelingembarassed when making the application to the school. .

The School’s Governing Body and the principal of the school will then review the application and then decide whether or not to grant an exemption.

 

It is of importance to note that although South Africa is making great strides to protect the rights of children, it also sympathizes with parents taking into account the current prevailing economic times, the scarcity of jobs and unemployment as well as the ever increasing burden of single parent households.

For any advice and or assistance on school fee affairs, maintenance and other children related issues feel free to contact us on 031 003 0630 or charmaine@schwenninc.co.za.

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How do I calculate maintenance for my child?

 

Every parent is responsible for the maintenance needs of their children. These needs are however, the REASONABLE needs of the child.

One calculates the child’s share to the common household as one part per child and two parts per adult.

To put it in simple terms we use the following formula:

 

 

Parents gross income                                                                              Childs Needs

______________________                           X                                __________________

Total gross income of both parents                                                                   1

 

= the parents contribution toward maintenance.

 

One parent can apply to the Maintenance Court for a change in the order once there is a change in income of either of the parents.

This process is free and highly recommended, especially after a costly divorce where one parent wants to vary the court order made due to change of circumstance.

The Maintenance Court is a faster and cheaper option as opposed to the costly and lengthy wait for a High Court order variation. It also has jurisdiction in the following areas:

 

  1. Setting aside an existing maintenance order;
  2. Make a new maintenance order;
  3. Decreasing a current order;
  4. Amending a current order, or
  5. Changing an existing order.

It is to be noted that Grandparents and other family members can, as a substitute, also be ordered to pay maintenance for the child if one of the parents cannot.

The reasonable needs of the child are calculated by looking at:

  1. The child’s previous lifestyle;
  2. The child’s parents income;
  3. The child’s parents financial abilities to pay maintenance; and
  4. The child’s health and specific educational needs.

It therefore goes without saying that every child’s needs have to be decided upon on a case by case basis.

If you need any assistance or legal advice contact us at Charmaine@schwenninc.co.za or call us on 0310030630.

 

 

Cyber Bullying and Harassment in South Africa

What is bullying?

Any type of behaviour by one or more persons that cause either physical, emotional or psychological harm to another person or persons.

Examples of bullying include:

  • Calling people names
  • Hitting, punching and biting
  • Spreading rumours
  • Threatening or intimidating people

Cyber bullying is an extension of the above and it includes the use of computers or cell phones and social media. (Facebook, Twitter and Instagram) to embarrass, threaten or cause harm to another person.

Examples of how cyber bullying is perpetrated:

  • Text messages
  • Picture/video clips
  • Emails
  • Chat rooms
  • Websites

Types of cyber bullying include the following:

  1. Harassment
  • Involves the consistent sending of messages to a person via cell phone, it is usually repeated and directed at the person
  • Direct harassment includes messaging, threats or bullying sent directly to the person and therefore follows that indirect harassment is when the person who is bullied has been subscribed to unwanted online services or dating sites.
  1. Impersonation or identity theft
  • This occurs when someone breaks into an email or social media account and poses as that person and sends messages in an attempt to damage that person’s reputation or friendship.
  1. Outing
  • Outing involves sharing someone’s secrets or embarrassing information online.
  1. Sexting
  • Involves the sending of nude or semi-nude photos or videos and/or sexually suggestive messages.

Differences between cyber bullying and traditional bullying

  • Cyber bullying is often anonymous and bullies can strike out at any time or from any place;
  • The audience involved in cyber bullying is generally higher due to the fact that the technology is readily available and things can turn “viral” within a couple of minutes;
  • The imagery in cyber bullying is often worse, due to the fact that the bullies can include videos and sound effects which can exacerbate the material in question.

 

 

Legal consequences of cyber bullying

  1. Human Rights
  • Bullying, violates a number of human rights, these include the right to privacy, the right to human dignity, the right to freedom and security of the person.

2. Crimen Injuria

  • Is the unlawful, intention and impairment or privacy of another person.

3.  Assault (Does not need to be physical)

  • Any unlawful and intention act which results in another person’s bodily integrity being impaired or which inspires a belief or fear that such action will be carried out.

4.  Criminal defamation

  • The unlawful and intentional publication of matter concerning another person which tends to injure their reputation.

5.  Extortion

  • An act when a person unlawfully and intentionally obtains some kind of advantage which may be used to that person’s disadvantage.

Legal consequences of sexting

Section 19 of the Criminal Law (sexual offences and related Matters) Amendment Act, 2007 provides that any person exposing or displaying or causing exposure or the display of child pornography is guilty of an offence.

So by sending or sharing nude or semi-nude photos or videos and/or suggestive messages via cell phones between children may therefore depending on the content, may also therefore fall within the ambit of the possession or creation, producing and distributing child pornography.

Any child who induces another child to take and send any photos of an illicit nature, shall be guilty of an offence.

What protection does one have to prevent cyber bullying?

The Protection from Harassment Act, 2011 provides comprehensive protection against electronic stalking. The Act transcends beyond the physical aspect of stalking, this is mainly because of the increase of cell phone users and internet users in South Africa.

If a court is satisfied that an incident of harassment is or has taken place, the court may issue an interim protection order at the start of any legal proceedings. In an effort to apprehend offenders, electronic service providers can now be forced to reveal details such as the name, email address or cell phone to which the IP address belongs.

Section 2 of the Act, sets out the process that is required for a Protection order and if the complainant is not legally represented the clerk of the Court must inform the complainant of the following

  • The relief that is available to the complainant
  • The right to lodge a criminal complaint against the person who is harassing the complainant for crimen injuria, assault, trespass, extortion

The application must be in writing and any supporting affidavits by people with knowledge of the matter may accompany the application. Once all the clerk of the court has received all the documents he/she must immediately submit the documents to the court.

 

Interim Protection Order

Once the court has received the application and supporting documents or any other additional evidence it deems fit (oral or written evidence).

If the Court is satisfied that there is prima facie evidence that:

  • The respondent is engaging or has engaged in harassment;
  • Harm is being suffered or may be suffered by the complainant as a result of the behaviour/conduct of the respondent if a protection order is not issued immediately;
  • The protection granted will be in way of an interim protection order and must be served on the respondent by the clerk of the court, sheriff or peace officer;
  • The interim protection order provides that the respondent must show cause on the return date (interim order – temporary order, this is because, often the court will only hear one side of the matter and makes the decision based on the evidence presented. The court then allows for the protection order to be valid from date the interim protection order until the date that the respondent gives their evidence);
  • Once an interim protection order is given, the Clerk of the Court, must serve a certified copy and an original warrant of arrest (The warrant of arrest will be effected, should the respondent violate the interim protection order).

At the return date, the Court may upon hearing the respondent’s case, the Court may make the interim protection order, a permanent order or set it aside.

In Summary, cyber bullying is treated the same as physical bullying and is taken seriously by our Courts. A foreseeable problem would be, when reporting the matter to the police, the police are not sure how to deal with the matter or how to proceed with any evidence.

Our what to do list, should you be a victim of cyber bullying or normal harassment is the following.

  1. Keep all evidence, screenshot any comments, photos or unwanted material
  2. Print out the evidence as this will support any application or affidavit that will be submitted to Court
  3. Report the matter to the police and ensure that you get a case number

Useful numbers

SAPS Emergency Services: 10111
Childline South Africa Report child abuse to Childline South Africa’s toll-free line: 0800 055 555
GBV Command Centre Contact the 24-hour Gender Based Violence Command Centre toll-free number 0800 428 428 to report abuse
South African Police Service Report all cases of rape, sexual assault or any form of violence to a local police station or call the toll-free Crime Stop number: 086 00 10111
Legal Aid South Africa Call the toll-free Legal Aid Advice Line 0800 110 110 for free legal aid if you who cannot afford one
Commission for Gender Equality Report Gender Discrimination and Abuse: 0800 007 709
South African Human Rights Commission Call 011 877 3600 to lodge a complaint about human rights violations.
Domestic violence Helpline: Stop Women Abuse: 0800 150 150
AIDS Helpline 0800 012 322

 

 

THE 16 DAYS OF ACTIVISM KICKED OFF IN KZN UNDER THE THEME #HEARMETOO: END VIOLENCE AGAINST WOMEN AND CHILDREN

The South African government launched the campaign for the year 2018 in Melmoth, KwaZulu-Natal under the #HearMeToo: End Violence Against Women and Children theme. During this time, the government will engage communities and hold discussions about violence in communities. By interacting with victims of violence and abuse, the government seeks to address these issues and curb violence against the vulnerable.

The 16 Days of Activism Against Gender-Based Violence campaign was initiated in 1991 by the Women’s Global Leadership Institute with the purpose of challenging violence against women and girls. Thousands of organisations and many countries began to participate in the campaign every year. The campaign runs from the 25 November to the 10 December, each year with its own theme.

Women, children and the elderly have been subjects of violence in South Africa and a substantial number of these cases don’t get reported. Some of the reasons for this is:

  • victims get manipulated into believing that their abusers are justified in abusing them;
  • loss of respect and confidence in the law and the justice system based on several cases where perpetrators have been released and not prosecuted;
  • some people live in rural arears where there are very little resources and perpetrators take advantage of their ignorance and poverty; and
  • the economic state of our country and poverty. It is not uncommon for perpetrators to “negotiate themselves” out of being reported by offering to pay some sort of compensation (damages) to the family.

Abuse takes difference forms, the most common types being physical, sexual and emotional abuse. According to the South African Medical Research Council (MRC), there is a growing number of women who get killed by their partners or ex-partners. This occurs in South Africa more than in any other country.

There has been a series of news about the death of women who were killed by their partners this year alone, including the deaths of Karabo Mokoena, Anelisa Dulaze, and the recent killing of Dibuseng Moss-Chiliza who was shot and killed by her husband at the Durban Magistrates Court while trying to divorce him.

The object that the campaign intends to achieve is to:

  • Attract all South Africans to be active participants in the fight to eradicate violence against women and children, hence the theme: Count me in.
  • Expand accountability beyond the Justice, Crime Prevention and Security cluster to include all government clusters and provinces.
  • Use technology, social media, culture, business and activism to draw attention to the ways in which domestic violence affects the lives of many around the world.
  • Promote collective responsibility in the fight to eradicate violence against women and children.
  • Create the awareness of domestic violence being a societal issue and in some way encourage the change of behaviour of possible perpetrators.

Any person can participate in the campaign and show support by wearing the red ribbon during the 16 day period. Victims of abuse must feel supported and should have no fear of speaking out about their abusers.

Helpful contacts:

FAMSA has offices nationwide and gives counselling to the abused and families: 011 975 7101 or visit their website www.famsa.org.za.

Lifeline provides 24-hour counselling services. Call the SA National Counselling Line on 0861 322 322.

POWA provides telephonic, counselling and legal support to women experiencing abuse. POWA also accompanies women to court and assists them in filling out documents. The POWA helpline is on 083 765 1235 or visit www.powa.co.za.

Legal Aid South Africa offers legal assistance. To locate your nearest Justice Centre, call 0861 053 425 or visit www.legal-aid.co.za.

Rape Crisis offers free confidential counselling to people who have been raped or sexually assaulted. Call 011 642 4345.

SAPS 10111

Any person can apply for a protection order at the nearest Magistrates Court (Domestic Violence Court) to where they live or work at any time and even on weekends. You will start by applying for an interim protection order by filing a Form 6 which will take effect immediately. You can thereafter apply for Protection Order by completing Form 2 and which is done by way of an affidavit. The Clerk of the court will then send the papers to the Magistrate who will set a date for the hearing. After the court appearance, the court may grant the protection order.

We all must take a stand to eradicate violence against women and children by participating in the campaign and speaking out. We must support victims, to enable them to stand up for themselves. Each victim that is silent places their lives and others in more danger by being silent. Communities must also speak out when they witness acts of violence in their communities so that those who do not have courage can be assisted.

DIVORCE PROCEEDINGS SUMMARY:

There are two courts in South Africa that deal with Divorces. One is the High Court and the other is the Regional Court. However, most divorces go through the High Court.

A court has the jurisdiction or right to hear the divorce due to the fact that the parties/ party are domiciled within the area of the court and if they are an ordinarily resident within the area of the court.

There are two types of divorces. One is Unopposed which is the most popular as it is quicker, cheaper and an agreed settlement agreement is reached. The other is an opposed divorce which will go to trial which could take a number of years.

 

How do I start the divorce proceedings?

If applicable, we try to settle the matter and a settlement agreement is concluded between the parties. This is normally done at a round table meeting with both parties and their attorneys. They will then agree to what will be put into the settlement agreement and or parenting plan.

The formal process starts with a summons, which we draw and issue at court.

This document sets out the names of the parties, where the marriage took place, how the marriage has irretrievably broken down, if there are any children from the marriage and the prayer sought e.g. maintenance, divorce order, medical aid expenses to be paid etc.

Once issued at court, we then send the summons to the sheriff to be served on the other party (“Defendant”). This must be personal service.

The Defendant would have 10 days to serve their Notice of Intention to Defend, which is filed if the matter is not settled and if they intend to oppose the divorce.

The divorce can be settled at any time during the process, but we are happy to run it as an opposed matter if it cannot be settled.

Once that is all agreed on, a Notice of Set Down will be served and filed giving a date for the divorce proceedings where the divorce should be granted.

And if the matter is opposed?

It will have to go to trial.

If a matter is indeed opposed, the Defendant will then sent his notice of intention to defend. As stated above they have 10 business days to defend, however, if they live outside of the court’s jurisdiction they have 14 working days if they live within 150km from the court and a month if they live more then 150km from the court.

The matter is ultimately set down for trial which is the set down date for argument. Both parties will have to be present with their legal representatives and give evidence before a judge.

Once that is done and after argument judgment will be made.

 

How we can help you.

At Schwenn Incorporated, we can help you through your divorce process and give the necessary advice. Contact us at Charmaine@schwenninc.co.za or call us on 0310030630.

www.schwenninc.co.za

 

WHICH NEW LAWS CAN WE EXPECT UNDER RAMAPHOSA’S RULING?

 

According to the Parliamentary Monitoring Group since January 2018, 41 Bills were in the “queue” in parliament, waiting to become enacted Legislation. Many may be finalized in this term of presidency.

To name a few here are some of the proposed bills to be finalized:

SMOKING LAWS:

These new laws are plan on banning smoking in all public spaces including:

  1. No in-door smoking including the removal of designated smoking areas;
  2. No outdoor smoking including the removal of designated smoking areas;
  3. When outside smokers must be at least ten meters away from any entrances;
  4. The removal of all branding and signage’s from cigarette packages; and
  5. Cigarettes may no longer be displayed by retailers.

Cigarettes will therefore be sold but not advertised. The packaging will only contain the brand name and warning labels.

DRINKING LAWS:

Aside from the total ban of alcohol advertising the following will also be put into place:

  1. The legal age to consume alcohol will now be increased to the age of twenty one years old as opposed to eighteen years old;
  2. The distribution and manufacturing of alcohol cannot be less then five hundred meters away from schools, places of worship, rehabilitation areas as well as residential areas; and
  3. Any unlicensed persons selling or distributing alcohol will have to pay damages in respect to any and all alcohol.

HATE SPEECH LAWS:

With the rise of the many racist comments that have been made public in this social media age, it is clear that something needs to be done.

To protect everyone’s race, religion and gender under the Constitution, new laws will come out to sanction hate speech. This punishment may even be used against petty insults. Other laws like internet censorship and congestion tax are also on the forefront of Parliaments promulgation list which we could be facing in the near future.

Want to know how laws are made? Have a look here :

https://www.parliament.gov.za/how-law-made

For any information regarding where you stand among the new fast approaching laws contact us at Schwenn Inc on 031 003 0630 or email us on Charmaine@schwenninc.co.za.

 

 

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:

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.