WHAT IS FICA and WHY WE NEED IT?

 

FICA stands for The Financial Intelligence Centre Act, which came into effect on 1 July 2003.

 

FICA was introduced to fight financial crime, such as money laundering, tax evasion, and terrorist financing activities. FICA brings South Africa in line with similar legislation in other countries.

 

FICA is essentially a means to ensure that an institution is required to ”get to know the client”. Financial institutions, like banks or other organizations such as attorneys firms or estate agencies do this by keeping proper records of their clients, requesting particulars and keeping a proper record of where the funds are coming from and where they are going.

 

It is therefore a legal requirement for financial institutions to FICA their clients in order to prevent financial crimes. The Act, places an obligation on the banks/attorneys firms to FICA their clients and it is a criminal offence for them not to do so.

 

The failure to FICA clients can lead to a prision sentence (ranging from 5 to 15 years) and or a fine (ranging from R 1 000 000 to R 10 000 000) depending on the offence, hence the

 

Some offences that are punishable under the Act, include, but not limited to;

 

  • Failure to identify persons involved in a contractual obligation
  • Destroying or tampering with records
  • Failure to advice Centre of a suspicious client/person
  • Failure to report cash transactions
  • Failure to report suspicious or unusual transactionsWe have therefore drafted a list of requirements that should be given or requested to your friendly attorney firm (that would be us) or other institution.For individual:
  1. Copy of client’s ID book;
  2. Utility bill – no older than 3 months and showing clearly the clients’ physical address;
  3. SARS document where clients’ SARS registration number is clearly visible.

 

For Companies and CC’s

 

  1. the registered address of the close corporation or company;
  2. the name under which the close corporation or company conducts business;
  3. the address from which the close corporation or company operates, or if it operates from multiple addresses –
    • the address of the office seeking to establish a business relationship; and
    • the address of its head office;
    • the full names, date of birth and identity number or nationality (as may be applicable), concerning –
    • the manager of the company; and
    • each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the company; and
    • the full names, date of birth, identity or registration number, nationality, address and / or legal form, as may be applicable, concerning the natural or legal person, partnership or trust holding 25%  or more of the voting rights in the company.

 

Documents required for companies

  1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Certificate of Incorporation (form CM1) and Notice of Registered Office and Postal Address (form CM22) – Companies.

Documents required for Closed Corporations

  1. identity document; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Founding Statement and Certificate of Incorporation (form CK1) and Amended Founding Statement (form CK2) if applicable – Close Corporations.

For Partnerships:

  1. the name of the partnership,
  2. the names, date of birth, identity or registration number, nationality, addresses and / or legal form, as may be applicable, concerning, every partner, including every member of a partnership the person who exercises executive control over the partnership;
  3. each natural person who purports to be authorised to establish a business relationship or to enter into a transaction with the accountable institution on behalf of the partnership.

Documents required for Partnerships

  1. identity document for all partners; or if a person cannot produce an identity document, another document bearing a photograph of the person and their names, date of birth and identity number;
  2. a document issued by the South African Revenue Services bearing the person’s name and the relevant number;
  3. a utility bill (no older than 3 months) or copy thereof;
  4. Partnership agreement.

For all your contract/property needs, contact our offices on 031 003 0630 or charmaine@schwenninc.co.za

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.

 

 

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.

The family:

Cape Town was once home to a wealthy family who was headed by father and businessman Martin Van Breda who was married to Teresa Van Breda who was the mother to Henri, Rudi and Marli Van Breda.

How it all began:

On the 27th of January 2015 the van Breda family lay in their own pools of blood while they were axed and stabbed to death. Among the family father and husband Martin, mother and wife Teresa as well as son and brother Rudi died in their Stellenbosch home. Sister and daughter Marli Van Breda was brutally attacked and somehow against all odds survived where she was rushed to hospital to the intensive care unit where she underwent many surgeries and therapy.

Henri Van Breda however was only found drenched in the blood of his family members as well as having sustained minor lacerations.

Henri told police and emergency services that a black man wearing dark clothing, gloves and a mask had broken into the family home where he went from room to room slaying each of his family members as he sat in the bathroom.

Henri who miraculously survived such a brutal attack immediately went to call his girlfriend at 4 am to which there was no answer. Henri then searched the internet for emergency numbers but only called the police some three hours later.

The aftermath:

After investigation the police found no fingerprints, foreign DNA or forced entry on the crime scene.

Henri Van Breda was then told to hand himself over to police which he did as he faced charges of murder and attempted murder. Henri was later released on bail on the condition that he reported to police and did not leave the Western Cape pending his pre-trial which was subsequently adjourned for time to gather DNA evidence.

Henry and his girlfriend were later found and arrested in Table View for the possession of cannabis which he later was released on bail.

In April 2018 the trial finally got underway after nearly 4 years without any justice for the victims where Henri made a plea of not guilty which enraged the community after everything they heard in the court room.

Why was Henri granted bail?:

The community was outraged when the news came that Henri was granted bail, not only once but twice! Many however don’t realize that bail is a way in which the court ensures the accused be present at court.

Here are the questions that a judge or magistrate needs to look at when granting a criminal bail:

  1. The likelihood that the accused will try evade his trial;
  2. The likelihood that the accused will try to influence and/or intimidate the potential state witnesses or conceal/destroy evidence;
  3. The likelihood that the accused will undermine or jeopardise the objectives or the proper functioning of the criminal justice system including the bail system;
  4. The likelihood that the accused will endanger the safety of the public or any particular person or will commit a schedule 1 offence;
  5. The likelihood that in exceptional circumstances the release of the accused will disturb the public order or undermine the public peace or security.

It was therefore found that 1-5 above could not be applied to Henri as he was not found to be guilty as well as the fact that he was in the care of family members at the time. The conditions of Henri’s bail are that he was not to leave the Cape area and he was to report in to local police officers on a regular basis.

Many people believe that it was unjust to have Henri released on bail after such a heinous crime. However, one should understand that the courts need to treat everyone innocent until proven guilty, and although Henri seemed to be the best suspect, there was no proof of such that the court could convict him on beyond a reasonable doubt.

  Pathology report:

Pathologist Dr Daphne Anthony who assessed the deceased and Marli made the following conclusions:

Marli Van Breda: her injuries were similar to those found on the other family members but she had multiple defense wounds that would suggest that she fought off her attacker stronger in force then the rest of her family.

Rudi Van Breda: he has said to have had the most horrific attack out of all the family as he was lying on his back when he was attacked throwing his hands up to defend himself before he was bludgeoned to death. Rudi was still alive for several hours after the attack as blood was found in his lungs and stomach as per his autopsy suggesting that he was still breathing and swallowing.

Martin Van Breda: he was said to have blood also found in his stomach stating that he was still alive after the attack, however, he did not see the attack coming.

Teresa Van Breda: she faced her attacker and tried to defend herself but died fairly instantly.

Motives of the attacker:

As Henri Van Breda’s story of the attack was found to be false he was left as the last suspect. Many speculated that Henri was cut off by his father as he was tired of his drug habits. These habits were confirmed by Henri’s drug dealer who testified against him stating that Henri was a regular customer of his. Henri however has not made any formal statements regarding his motives for killing his family as he still pleads not guilty.

Marli Van Breda:

Due to the severity of Marli’s injuries and after spending many months in surgery after surgery and physio therapy she has officially been diagnosed with retrograde amnesia which means that she has no recollection of the attack and therefore could not testify against her brother.

Marli has been kept away from Henri where she now stays with relatives. She has returned to school and is continuing her life as best she can.

Outcome of the case:

Judge Siraj Desai found Henri Van Breda to be guilty on three counts of murder and one count of attempted murder as well as obstructing the course of justice.

Van Breda was sentenced on the 7th June 2018 to life imprisonment for each of the three murders, 15 years for the attempted murder and one additional year for the obstructing the course of justice.

Henri Van Breda who was temporarily residing in the Pollsmoor Prison in the hospital wing for treatment of epilepsy and depression will now be moved to Paarl Correctional Facility to serve his sentences concurrently.

The Van Breda legal team plan to lodge an application for leave to appeal which will be heard on the 27 June 2018.

They say that the battle line between good and evil lies thin in the heart of every man. Was this tragedy then just another drug induced mistake or is Henri Van Breda an evil murderer who sought to break up his family forever?

 

Wondering how to proceed with litigation in South Africa? This useful guide gives you all the answers you need on surviving litigation in South Africa.

A List of South African Courts

The primary South African courts include the following:

  • The Constitutional Court: This court hears matters regarding the interpretation, protection and enforcement of the Constitution.  This court will also hear matters as first instance if the court feels that the matter is in the interest of justice, affects the community or has a strong point in law.

 

  • The Supreme Court of Appeal: Based in Bloemfontein, this is the second highest court in South Africa and it only deals with cases sent from the High Court. The SCA is purely an appeal court, which means it deals only with appeals and related appeal issues.

 

  • The High Court: Each High Court division has general jurisdiction over the area in which it is based. This court deals with all matters, but generally only hears civil matters involving R400, 000 and above along with serious criminal cases, divorces, money owed etc.

 

  • The Regional Magistrates Court: Deals with matters from R200,000 to R400, 000, this court deals with anything that changes ones status or more serious criminal cases.

 

  • The District Magistrates Court: There are roughly 350 magisterial courts. These courts hear all criminal cases, except treason, murder and rape, and can impose a sentence of under three years imprisonment and a fine of no more than R120,000. Civil cases of R200,000 can also be heard in this court.

 

  • The Small Claims Court: This court deals with minor civil claims of R15,000 or less. Attorneys are not required, but they can assist those seeking advice on minor civil issues.

 

  • The Labour Court: This court hears labour law cases only, ranging from trade union issues to strikes and lockouts, unfair dismissal, discrimination, various other unfair labour practices and work related offences such as theft, misconduct and sexual harassment.

 

  • The Children’s Court: Every Magistrate’s Court in South Africa is a Children’s Court. This court deals with cases relating to the welfare of abused, neglected and abandoned children along with various other cases relating to child welfare. The purpose of this court is to give effect to section 28 of the Constitution which holds the best interests of children to be of upmost importance.

 

  • The Maintenance Court: Every magistrate’s court in South Africa is also a maintenance court, dealing specifically with maintenance issues.

 

  • The Family Court: Dealing with issues such as guardianship and custody of children. This court also helps prevent children from having to appear in court and limit any related trauma.

 

  • The Domestic Violence Court: This court deals with the protection of victims of violence not only within the household unit. It deals with protection orders, damage to property or person where harm is committed either physically, sexually and emotionally to name a few.

 

  • The CCMA Commission: This Commission deals with work related issues usually before they are taken to the Labour Courts. These work related issues are dealt with by conciliation, mediation and arbitration which helps negotiate a solution between parties in conflict or for employees whom are begrudged.

 

Choosing a Court in South Africa

Courts can hear cases only if they have jurisdiction within the given area. That means that you cannot choose the court. Instead, courts are determined by the following factors:

The value of the claim.

Anything  between R15,000 and below  is heard in the Small Claims Court.
Anything between R200,000 and below  is heard in a District Magistrates Court.
Anything above R200,000 but under R400,000 is heard in a Regional Magistrates Court.
Anything over R400,000 is heard in the High Court.

The nature of the claim.

The nature of the claim will also determine the court. For example, a child-related issue will be heard in the Children’s Court or High Court, a maintenance issue will be heard in the Maintenance Court, a labour issue will be heard in the Labour Court, a criminal case will be heard in the High Court or Magistrate Court or a Regional Court, a constitutional case will be heard in the Constitutional Court and an appeal on a current conviction  from High Court will be heard in the Supreme Court of Appeals.

The geographical area.

Finally, another factor that determines the court is the area. Courts typically have authority within certain jurisdictions. If you are based in Durban, you will likely be heard in a Durban court rather than a Cape Town court. This does not apply in the case of the Supreme Court of Appeals or Constitutional Court, however, as these have jurisdiction on a broader country-wide level.

Proceeding With Litigation in South Africa

If you have a good lawyer, you will be taken through the process step by step. To give you an idea of how courts work once matters proceed to trial, here’s what to expect when proceeding with litigation in South Africa:

  • South Africa follows an adversarial trial system that allows both plaintiff and defendant to argue their versions in front of a judge. No jury is present – instead, you will be taking your case to a judge that oversees the entire trial. It is important to note that a judge is an unbiased third party whom will make decisions based on evidence presented from both parties.

 

  • The Plaintiff’s attorney’s on record or advocate  will outline their case before the court, presenting evidence to show that their client’s case is reasonably true. The plaintiff will then close their case once they have given their evidence.

 

  • If there are witnesses for the Paintiff’s case, the attorney or advocate will question them, allowing the other side to cross- examine the witness where lastly the Plaintiff’s attorn ey or advocate will re-examine and close their case.

 

  • The Defendant’s attorney’s on record or advocate then needs to outline their client’s case, showing that there is sufficient evidence to disprove the plaintiff’s case. Once they have finalised their case, they will close.

 

  • If witnesses are required to give evidence, they will be examined in turn by the Defendant’s attorney on record or advocate, then the opposing party may cross-examine the witness where the Defendant will then re-examine the witness and close their case.

 

  • Once both parties have finalised their cases, they will each present their final closing arguments before the judge. No new evidence is permitted during these closing arguments.

 

  • The judge will then make the final ruling decision, after evaluating evidence and arguments from both parties.

Do You Need a Lawyer for Litigation in South Africa?

Every person deserves the right to a fair speedy trial. While you have the choice whether or not to hire a lawyer, having legal assistance is the best way to ensure a positive outcome in your case. A lawyer that works with you each step of the way can also give you peace of mind.

To find out more about seeking professional help with litigation in South Africa, contact our team of legal specialists today.