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.

 

 

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.

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

 

 

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.

 

 

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.

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.

 

 

COMPANIES : ARE YOU WILLING TO GIVE 10% OF YOUR TURNOVER AWAY?

 The Companies and Intellectual Property Commission (CIPC) sent out a media release on the 31 May 2018 on cases in the High Court that they have won. These wins are related to Section 30 of the Companies Act which states that “every company is required to prepare its annual financial statements within 6 months after of end of its financial year”.

 

The Companies and Intellectual Property Commission (CIPC) objectives.

Among others, CIPC, has the responsibility to promote compliance in terms of the Companies Act efficiently and effectively in order to ensure the widest possible enforcement. This includes promoting the reliability of financial statements prepared and submitted by companies as well as monitoring compliance in terms of those financial statements.

 

What is the Independent Regulatory Board for Auditors (IRBA)?

Auditors of a company need to be independent and reliable in order to combat fraudulent activities. Therefore the IRBA is an organisation made up of many independent and reliable auditors that report to CIPC after their completion of an audit of a respective company and its financial records.

 

What do we know from the recent court decisions?

IRBA have reported a major failure by companies to comply with section 30 of the Act in that they were not submitting their financial statements within the prescribed period either in full or at all.

IRBA then reported their findings to CIPC in order for CIPC to follow out their objectives and enforce compliance. CIPC sent these various companies Compliance Notices which were in turn ignored.

CIPC then sent the companies Administrative fines for the period of non-compliance and again such was done to no avail.

 

Which are the major companies involved in the failure to comply?

The companies which gave the CIPC the most problems were Citiconnect, Blue Sky Air and Sisao Projects.

These were the major role players referred to in the Notice of Motion brought by CIPC. They brought a court application seeking an order by the court to enforce those Administrative fines.

 

What was the outcome?

The conclusion of these cases was in favour of CIPC. The Administrative fines were ordered to be paid by each company equal to 10% of their turnover during the entire period that these companies showed non-compliance!

 

CIPC’s concluding remarks are that they “strive to rectify conduct that goes against the spirit of the Companies Act through high standards of corporate governance and high levels of transparency”. Our Question to you is, have you submitted you annual Financial Statements?

 

How can we help?

Schwenn Inc., Attorneys and Conveyancers can assist with your company secretarial duties and ensure that you are aware of these kinds of obligations.