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Breather for Creditors; Beware for Debtors

Commercial debtors and creditors (veteran and inexperienced) are generally aware of the Golden Rule when it comes to debt collection. It is a very old yet deadly rule; it would appear, however, that creditors and debtors alike appear to have limited understanding of this rule in the practical sphere. The Golden Rule : As a general rule, Section 11(d) of the Prescription Act, 68 of 1969 declares that if a debt is owed by person A ( the debtor ) to person B ( the creditor ), and unless person A is a State entity, person B is granted a period of three years from due date to claim the debt from person A in a Court of competent jurisdiction before the debt shall be deemed to have become legally extinguished. It is essential that creditors and debtors alike are aware of this Rule. For the creditor, it indicates the time allowed to enforce its rights to claim the said amount from the debtor. For the Debtor, it indicates whether or not there is a valid defence against a debt wh
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The End to Peeping Toms

Since 5 December 2011, the Protection from Harassment Act, 2011 (“the Act”) has been tested throughout South African Magisterial Courts within the civil context. Apart from some fine-tuned housekeeping by these Courts, the orders emanating from this Act have some far-reaching consequences. Regardless, it has seen to the end of the archaic Peace Orders which, in practice, served very little (if any) purpose in the way of protecting victims of harassment, civil abuse, and intimidation. How does one know if conduct to which he/she is being subjected would fall under the protection offered by the Act? Essentially, the Act authorises the Courts to conduct two enquiries into each application: is there harassment , and if the answer to this question is in the affirmative, does the harassment cause harm ? As it is with all spheres of law, the answers to these questions are far from simple. Section 1 of the Act defines both “Harassment” and “harm”. Harassment has been attributed
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Can the Hague Convention help me see my child?

The ever-present problem of child abduction persists in many countries. “Abductions” has a wide meaning in terms of Child Law to include keeping a child away in another country from a parent who has rights to see his/her child. South Africa became a signatory to the Hague Convention on the Civil Aspects of International Child Abduction on 1 October 1997 (“the Convention”). Prior to the Convention, even if a parent had a court-ordered right to a child, it was exceptionally difficult to enforce that right outside of the Country which granted the order, being it of ‘access’ or ‘custody.’ The major limitation with respect to the Convention is that it is only applicable to countries who are signatories to it and whom therefore have an obligation to ratify the Convention into its own law. These countries are called “Contracting States.” This means that each country that agreed to abide by the Convention must create its own ‘local’ laws to give effect to the Convention, so that their o
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How do I evict a Tennent from my Commercial Premises?

Firstly, PIE is exclusively for housing usage and finds no application to the removal of juristic persons from commercial premises. Secondly, ESTA also very rarely finds application to commercial property usage. Even if the property being rented is a residential property but for the business use, or a commercial property not for commercial use, the question to ask is “ how is the property being used? For residential or commercial uses?” [1] This question gives rise to two important aspects to consider: (1)     The first is the use of the term “ dwelling or shelter ,” neither of which is used to describe a commercial property. (2)     The second is the use of the term “ residing ” which applies to all persons who, through consequentially means, occupy the property. There is no piece of legislation that governs commercial evictions and property usage. Therefore, commercial evictions and property usage are (to a large extent) exclusively based on the terms of the leas
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How Does She Do It?

Many people ask me how I handle family cases on a daily basis and am still sane enough to label it as one of my specialisations. Here is the secret to my sanity. Naturally, what I do is fraught with emotions, from start to finish. There is not a single case that I have dealt with that does not have an element of emotions involved. Learning how to deal with these " third-party emotions " is part of the tricks of our trade. Some attorneys do it well, others do not. Even Judges have been known to "descend into the arena" from time to time! It is not only third-party emotions that we need to manage; we also have emotional triggers within ourselves that find themselves erupting at inopportune or unnecessary times. But is it not true that every occupation has a certain element of emotion? How people react to stress, for example, exhibits emotions that other people are often tasked with managing. So how do they do it? I believe that the key to handling emot
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Good News for Maintenance Claims!

Heads up: in case you have not noticed, the Maintenance Act 1998 has undergone a magnificent revamp . At least someone has heard our cries! As of  9 September 2015 , the below amendments became law. It is not a complete makeover but it is at least a rather good start. Here is a brief summary of its benefits: A: INTERIM MAINTENANCE ORDERS The Maintenance Act currently makes no provision for  interim  Orders i.e. Maintenance Orders which are payable whilst the matter is still in Court and before final judgment is made by a Magistrate. This became a royal pain in the backside because often the primary caregivers fight tooth and nail to get Maintenance out of the other party. Now, even if that party chooses to put up a barricade of excuses as to why he / she / they cannot pay the requested Maintenance, at least your little ones will be looked after in between. Previously, under the repealed Act, interim Orders were permissible. For some unknown and bizarre reason, they were done
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What if...

A "workshop" which changed my life as an attorney and protagonist of peace...: I published this blogpost on my personal blog as well but purely for this blog, I have included this interesting thought experiment: What if all legal professionals were given a suggested way of thinking, which paradoxically ended up proving them wrong, but which also would lead to more productive, efficient, positive, and spiritual representation of people / communities / interests / groups? Now, what if our judges, magistrates, court staff, and drafters of legislation were given a means to change their lives as well as the lives of all those people over whom their legislative means operates? Is it so impossible to imagine a world where all legal professionals do not impose on the public their own beliefs / opinions / attitudes (which on their own are derived from their past experience)? This perpetuates the negativity that this world is trying to eradicate. This goes further: the legis
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