Is a customary marriage valid if the payment of lobola occurred?

The matter Mxiki v Mbata is a recent appeal case that was heard in the North Gauteng High Court, Pretoria, by the Honourable Jude Matojane who ruled that the payment of lobola is not the only requirement for the validity of a customary marriage as set forth in Section 3 of the Recognition of the Customary Marriages Act 120 of 1998 (hereinafter referred to as “the Act”).

The Act requires that the marriage must be negotiated and entered into or celebrated in accordance with the customary law.

The customary law of marriage in the true African tradition is not an event but a process that comprises a chain of events. Furthermore it is not about the bride and groom. It involves two families. The basic formalities which lead to a customary marriage are:

  1. Emissaries are sent by the man’s family to the woman’s family to indicate interest in the possible marriage;
  1. A meeting of the parties’ relatives will be convened where lobola is negotiated; and
  1. The negotiated lobola or part thereof is handed over to the woman’s family and the two families will agree on the formalities and date on which the woman will then be handed over to the man’s family which handing over may include but not necessarily be accompanied by celebration.

In light of the aforementioned recent appeal, the handing over of the bride, even if the lobola has not been paid in full, constitutes a valid customary marriage and not the payment of lobola itself. There can therefore be no valid customary marriage until the bride has been formally and officially handed over to her husband’s family.

 

 

Your rights when arrested

What to do when arrested

How may one be arrested?

A person may be arrested either on the strength of a warrant of arrest or when a police officer witness a person committing an offence or has probable cause to believe that a person was involved in the commission of a crime.

When approached by a police officer, one should remain calm. Do not flee or allow your first response to be an aggressive one. Offer your co-operation to the officer, do not resist arrest and never offer to pay a bribe. Should arrest be resisted, then reasonable force may be used by the officer to making the arrest.

Your rights upon arrest

You have the right to be informed of the charges on which you are being arrested. Most importantly you have the right to remain silent, to be informed promptly of such right and the consequences of not remaining silent. Any information uttered or willingly given to an officer may be used against you in court.

You may not be compelled to make any confession or admission that could be used in evidence against you. A person further has the right to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest. If the period of 48 hours expires outside ordinary court hours or on a day which is not an ordinary court day, the accused must be brought before a court not later than the end of the first following court day.

Once arrested you are required to tell the police your home address. A police officer may not request any further information from you including in respect of your activities or organisations you are involved with.

Your rights upon detention

After an arrest you will, more often than not, be detained at a police station. In detention you may be searched. You may however not be searched without your consent and a person of the same sex should conduct the search. The police have the right to take your fingerprints and take photographs.

A person has the right to:

  • Be informed promptly of the reason for being detained;
  • Choose to, and consult with an attorney of his/her choice, and should such person not have the means to appoint an attorney of choice, to have a legal practitioner assigned by the state at the state’s expense and to be promptly informed of such rights;
  • Challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
  • Be contained in conditions that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment;
  • Communicate with, and be visited by, the person’s spouse or partner, next of kin, chosen religious counsellor, and chosen medical practitioner; and
  • Be presumed innocent until proven guilty.

The police must inform a detainee of these rights and when informed it must be in a language that the person can understand.

Contrary to popular belief, a person does not have the right to immediately make a phone call or see a lawyer. You have the right to be detained in conditions that are consistent with human dignity and to communicate with the above-mentioned people.

BAIL:

Bail applications are always urgent to minimise the impact on an accused’s freedom when not convicted yet.

It is an agreement between the State and the accused. The accused is released from custody upon payment of an agreed amount subject to the accused appearing before court on an agreed date and time.

In all aspects the criminal attorneys at  Leeuwner Maritz can assist you and walk through any difficult situation you may find yourself in.

Criminal Law

I need a lawyer

Situations in life happen and suddenly you find yourself in a position where you have to say “I need a lawyer”. Leeuwner Maritz Attorneys can assist you

1. DEFINITION:

South African Criminal Law – This is the body of our National Law relating to crime in South Africa. Crime involves the infliction of harm against society and punishment remissible by the state alone.

2. OUR EXPERTISE:

Our criminal attorneys have 43 combined years of practical experience in criminal investigation and litigation.

Our department head inter alia served as a Colonel in the South African Police Services with in excess of 20 years experience in criminal investigation, interrogation and prosecution.

Our expertise includes:

  • Bail applications;
  • Pre-trial, Trial and Post-trial representation;
  • Appeal representation; and
  • Civil claims against the State (e.g. unlawful arrest and detention / unlawful assault)

3. CRIMINAL LIABILITY:

In South Africa the State accuses and the accused defends.

“actus non facit reum nisi mens sit rea” – an Act is not unlawful unless there is a guilty mind.

The State must prove, beyond a reasonable doubt, that an accused has committed:

  1. Voluntarily conduct (this excludes inter alia automatism like epilepsy, blackouts and extreme intoxication) which is unlawful (this excludes inter alia private defence and impossibility); with
  2. Criminal capacity; and
  3. Fault (intention / negligence).

Your rights when arrested in South Africa. More . . .

Road Accident Fund – Claims

If you have been injured in a motor vehicle accident or road accident, as a result of the negligent and unlawful driving of a motor vehicle in the republic of south africa, that was not your fault, alternatively if you have suffered damage or loss as a result of the death of or injury to your breadwinner in such a manner, you have a claim against the road accident fund about us?

Leeuwmer-Maritz Road Accident Fund Attorneys – We have 13 years experience, specialising in the field of Road Accident Fund Claims and the cases finalised are too many to mention.

What is the Road Accident Fund (RAF)?

The RAF is a statutorily created fund financed from levies on fuel and the statutory insurer of all drivers on the roads within the borders of South Africa. It is the only entity liable for and dealing with all Third Party Claims.

In terms of the Road Accident Fund Act No. 56 of 1996, the Fund is a juristic person whose object is the payment of fair and just compensation in accordance with the Act for injury or death resulting from the negligent driving of motor vehicles on South African roads.

A claimant with a Third Party Claim that complies with all the requirements of the Act is compelled by law to institute his/her claim against the Road Accident Fund and may not legally claim from the wrongdoer. The liability of the RAF is limited to damages arising from bodily injury only (damage to property like a vehicle or clothing has to be claimed from the wrongdoer directly)

Leeuwmer-Maritz Road Accident Fund Attorneys – We have 13 years experience, specialising in the field of Road Accident Fund Claims and the cases finalised are too many to mention.

Due to constantly changing statutory requirements and the fact that the Road Accident Fund is a litigious opponent with unlimited resources, Road Accident Fund claims are difficult, timely and expensive to institute and finalise. We have the necessary professional and financial resources, complimented by a large team of medical and other experts to handle and litigate the complicated claims. Personal attention is given to every client and every case.

Download your guide to the Road Accident Fund here

Visit the official Road Accident Fund  (RAF.co.za) website here

LeeuwnerMaritzabout-us

Conveyancing

The Conveyancing Process – South Africa

When buying or selling a house ownership of the property’s title deed needs to change hands. This is called the conveyancing process – here is an outline of that process when buying or selling a house in South Africa.

ONE
DEED OF SALE is drafted and signed by both the SELLER and the PURCHASER. The PURCHASER will apply for a BOND through a financial institution, and/or deliver GUARANTEES to secure the purchase price.

TWO
Once a BOND is APPROVED, the attorneys receive the LETTER OF GRANT/QUOTATION/ PRE-AGREEMENT. Electronic instructions will follow.

THREE
Attorneys apply for and receive CANCELLATION FIGURES for the SELLER’S bond as well as CLEARANCE figures from the local authority valid for six months. (In terms of Section 118 of the Municipal Systems Act). The costs to obtain these varies. If sectional title, additional figures are obtained from the body corporate.

FOUR
Attorneys prepare the BOND, TRANSFER and FICA documentation. PURCHASER to sign the BOND, TRANSFER and FICA documentation. SELLER to sign TRANSFER and FICA documentation only.

FIVE
PURCHASER pays TRANSFER COSTS. TRANSFER DUTY is payable to SARS when the property is transferred from one party to another. (Please refer to the TRANSFER DUTY table). When VAT is payable, TRANSFER DUTY will not be applicable.

SIX
SELLER pays the RATES & TAXES up to the date of REGISTRATION, as well as the COSTS TO CANCEL their existing BOND, if applicable.

SEVEN
Attorneys receive TRANSFER DUTY RECEIPT from SARS, CLEARANCE CERTIFICATE from local authority or CLEARANCE and INSURANCE CERTIFICATES from Body Corporate.

EIGHT
INSTRUCTION is sent to the lodging attorney. If the TRANSFERRING, BOND and CANCELLATION attorneys are all ready, documents are lodged simultaneously at the DEEDS OFFICE.

NINE
OCCUPATIONAL RENT is payable to the SELLER, should occupation be taken before REGISTRATION. OCCUPATIONAL RENT is normally payable to the CONVEYANCER who will in turn pay the SELLER on the DATE OF REGISTRATION. If the SELLER occupies the property after registration, OCCUPATIONAL RENT is payable to the PURCHASER.

TEN
PREPARATION and REGISTRATION takes place 10 – 15 working days after LODGEMENT.

Leeuwmer Maritz situated in Johannesburg is many years of experience with this process and is able to assist you with the minimum of fuss and bother.  Contact Leeuwmer Maritz Attorneys today.

Download our handy guide to the conveyancing process here.

Consumer Protection Act – Leasing

There has been much discussion and debate about the applicability of the Consumer Protection Act 68 of 2008 (CPA) to leases of immovable property. The view has been expressed that one large landlord needs worry about the CPA, and those which lease only a single property (or a few) do not need to worry. The author believes that this is a terribly inaccurate position to adopt.

The CPA plainly states that it applies to leases (defined as a “service”) provided the leases are concluded “in the ordinary course of the supplier’s business”. This phrase is not defined, though the word “business” is defined as “the continual marketing of any goods or services …”

The CPA must be interpreted purposively to achieve its primary objective, namely: To afford consumers the maximum protection.

It would make little sense if the question of whether the CPA applies would turn solely on whether the supplier is in the “business” (in the conventional sense of the word) of entering into leases, especially because most leases are not concluded between landlords falling into that category. Indeed, a large number of consumers would be excluded from its ambit if this was the case.

This is where foreign law is instructive. Section 2(2) of the CPA requires a court to consider the following when interpreting the provisions of the CPA.
1. appropriate foreign and international law;
2. appropriate international conventions, declarations or protocols relating to consumer protection.

Foreign law indicates that a somewhat broad interpretation is given to the phrase “ordinary course of business” in the context of consumer protection legislation. The Solicitors Journal (UK) contains an article discussing the Unfair Terms in Consumer Contracts Regulations 1999 (the Regulations) and which explains succinctly that “The supplier must enter into the contract as part of their course of business. This should usually be easy to satisfy in tenancy cases, as rarely will property be let other than in the course of business.” Of course, as a matter of common knowledge, very few leases (at least in the residential context) are entered into with landlords holding large portfolios of property. Despite this fact, the article concludes that on the proper interpretation of the applicable consumer protection legislation, it should apply.

In summary, the author is of the view that out of caution (and also probably because it is the most likely interpretation) it should generally be assumed that the CPA applies to leases, regardless of the size of the landlord’s leasing.

Voetstoots – Rouwkoop Clause

The Voetstoots or Rouwkoop Clause

This clause is common in the contracts for the sale of immovable property. These clauses purport to protect the seller against claims from the purchaser based on defects in the property, and furthermore, often also exclude liability for representations which the seller MADE, but that are not contained in the sale agreement itself.

However, few people are aware that these clauses only offer limited protection, even where the Consumer Protection Act 68 of 2008 (CPA) does not apply. In terms of the common law, if there is fraud on the part of the seller in concealing a defect or making a representation, the contract is voidable at the instance of the purchaser, and this right cannot be contracted out of by the parties.

The judgment of the Supreme Court of Appeal in Sim Road Investments CC v Morgan Air Cargo (Pty) Ltd (024/10) [2011] ZASCA 81 (27 May 2011) explains this point succinctly. The court firstly acknowledged that “liability for a misrepresentation made innocently and even negligently may be excluded by parties to a contract”. It therefore follows that the voetstoots clause can lawfully exclude liability where there is no fraud on the part of the seller.

However, the court continued, “The difference that fraud makes is that one cannot contract out of liability for fraudulent conduct.” In other words, where there is fraud on the part of the seller, no protection can be afforded by contract, whether in the form of a voetstoots clause or otherwise.

The court also pointed out that even where “[the purchaser] has been foolish or negligent in relying on the fraudulent misrepresentation, that does not in any way affect the liability of the [seller].” It is therefore important to determine whether there was fraud. If not, a voetstoots clause may be an absolute defence.

Essentially, proving fraud requires proof that the seller knew of the defect and intended to misrepresent the true state of affairs to the detriment of the purchaser. Importantly, however, although referred to as a “misrepresentation” silence itself may suffice even though it is an omission. For example, it has been held that a party is expected to disclose facts which fall within his or her exclusive knowledge where such information would be mutually recognised by honest persons in the circumstances as being the sort which he or she would have a duty to impart to the other party. (ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA) at para 5). Therefore, a material non-disclosure of facts may itself amount to a misrepresentation which, if accompanied by fraud, would be grounds for rescission or a claim for damages.

The other important issue to consider is that of materiality. In other words, the misrepresentation must be material before a purchaser may cancel the contract or claim damages. In the context of sales of immovable property this raises a separate subject all together which perhaps the author will touch upon in a separate article. However, the following are some examples of possible material non-disclosures or misrepresentations:
• If the seller states in response to a query from the purchaser that there are no boundary disputes and it turns out there is a current dispute about a boundary fence, this would likely amount to a material misrepresentation.
• Likewise, if the seller responds to a query from the purchaser about whether there have been any recent burglaries at the property, “Not to my knowledge”, and the seller knows this to be false, this too may amount to a material misrepresentation.
• Another obvious example would relate to defects in the property which are either not disclosed, or misrepresented not to exist, such as structural problems with the premises, issues with flooding, etc.  


To sum up: The voetstoots clause only serves to protect a seller in situations where he or she did not deliberately conceal defects or facts to the detriment of the purchaser. In cases of fraud, the purchaser retains the remedies of cancellation and claiming damages regardless of whether the contract purports to exclude such a right.

Deceased Estates

Administration of deceased estates

Life has a beginning and an end and an Estate arises on a person’s death. An Estate is a person’s net worth at any point in time and thus the sum of a person’s assets less all liabilities.

Reporting the death and the estate

When a person with assets dies, his/her Estate must be reported to and be registered at the office of the Master of the High Court within 14 (fourteen) days of the date of death by lodging a Death Notice, substantially in the form prescribed.

The Master’s primary function is “to protect the interest of creditors, heirs, legatees or all other persons having any claim upon the estate”. In the exercise of this function the Master is given extensive powers of supervision by the Act. It is also his duty to protect the fiscus with regard to estate duty, where payable, and he is in a sense the upper guardian of minors. The administration of estates is under his exclusive jurisdiction. The purpose is to ensure an orderly winding up of the financial affairs of the deceased, and the protection of the financial interest of the heirs.

Which deaths must be reported?

1) The death of any person who dies within the Republic leaving therein any property or document being, or purporting to be, a will.

Must be reported by deceased’s surviving spouse, alternatively nearest relative or connection residing in the district where the death occurred or by the person in control of the premises at which the death occurred.

2) The death of any person who dies outside the Republic therein any property or document being, or purporting to be, a will, in the Republic.

Must be reported by any person within the Republic who has possession or control of such property or document

Liquidation

LIQUIDATION

Leeuwner Maritz can advise and assist should you feel that your company is in danger of liquidation

A Company or Close corporation may be liquidated by the court for a variety of reasons in terms of the Companies Act.  It is a structured method of closing down a company in a legal manner.

It means to wind up the financial affairs and contractual obligations that brought the company into existence and is a structured method of closing down the company in a legal manner.

Commercial insolvency (an inability to pay debts as and when they become due in the ordinary course of business) needs to be established in liquidation applications.

The Company/Close Corporation and its affairs are placed under the control of a liquidator who’s main aim is to realize the assets and to divide the yield from the sale of assets amongst creditors fairly in order of priority and to dissolve the Company/Close Corporation in an orderly manner in accordance with the Companies Act.

The two forms of liquidation:

a) Voluntary – This is by a shareholders/members resolution;

b) Compulsory – This is done by a court order, which would usually be done by one of the company’s creditors.

“Our Attorneys can assist in this respect, as well as in preventing and opposing same.”

 

Sequestration

A) Sequestration and Rehabilitation

Leeuwner Maritz can assist and advise you should you feel that sequestration may be a possibility.

Sequestration is a structured legal method of getting rid of all your debt with immediate effect. It is the surrendering of the estate of a natural person, a trust, a partnership, a deceased estate or a married couple’s joint estate. (liquidation applies only to a company)

If a person’s debt has become too great and is impossible to manage and such person’s liabilities exceed his/her assets, the individual is insolvent. In certain cases such a person can eliminate his debt and re-obtain a normal life free of debt. This is done by way of a procedure involving an application to court for the sequestration of such a person’s estate.

After the Court has granted a sequestration order, the Master of the High Court appoints a trustee who is placed in control of the insolvent’s estate. The insolvent surrenders all assets to the trustee who will sell same in terms of the Insolvency Act.

Creditors are then no longer able to pursue the insolvent directly.

The proceeds of the sale of the said assets are divided amongst creditors in a manner which is prescribed in the Insolvency Act.

Requirements for insolvency
  • Your liabilities must exceed your assets.
  • Sequestration must be to the advantage of your creditors.
  • There must be sufficient assets to pay the costs of the sequestration or liquidation application.

The two forms of sequestration:

i) Voluntary – This is where a debtor applies to court for the sequestration for his/her own estate.

ii) Compulsory – This is where a creditor applies to court for the sequestration of his/her debtor’s estate.

B) REHABILITATION

Rehabilitation ends sequestration – the insolvent starts afresh with a clean slate without debt or creditors.”)

An insolvent can be rehabilitated upon proving to the Court that he/she is rehabilitated.

Generally this can happen by way of an application to the High Court four years after the date upon which the insolvent’s estate was sequestrated. However under certain circumstances this can happen sooner.

The Court will consider various factors before granting a rehabilitation order, inter alia that the Applicant is in a good stable financial position with a steady income that exceeds his/her expenses.

Rehabilitation however occurs automatically upon the expiry of ten years from the date of sequestration.

“Our Attorneys can assist in this respect, as well as in preventing and opposing same.”