Author Archive: Simon Dippenaar | SD Law Cape Town

Red Ants continue to disregard due process of law

Illegal evictions and fatalities are calling cards of Red Ants

At Cape Town eviction lawyers Simon Dippenaar & Associates (SDLAW), we were angered and saddened to learn of recent illegal actions by the Gauteng security company Red Ants. The Red Ants firm specialises in “urban management support services for human settlements”, and was established to counter the influence of large, multinationals who dominate the South African economy. Its mission is “to protect, train, empower, serve and provide food security to our communities”. A noble mission indeed, yet more often than not the Red Ants are the cause of homelessness in those communities rather than providing security, food or otherwise.

Evictions should be lawful and respectful. Rend Ants act illegally.

As eviction attorneys we uphold the rights of property owners under the law, but we also fight for tenants whose rights are threatened or disregarded. We defend the Constitution, and base our law practice on the citizens’ rights bestowed therein. Eviction law has been carefully crafted to protect the poor and the vulnerable, after decades of exploitation and unfair practices under apartheid. Everyone has the right to adequate housing. Therefore the recent actions of the Red Ants in Gauteng are disappointing and disturbing.

Shacks destroyed in Alexandra Township

Earlier this month, more than 80 shacks, allegedly built illegally and too close to the Jukskei River, were destroyed by the Red Ants in Alexandra, Johannesburg, rendering 100s homeless. However, the Red Ants are not solely to blame. Johannesburg Mayor Herman Mashaba has said that the demolition was unlawful and should not have been authorised by city officials. The eviction order was in fact obtained in 2016 (before Mashaba was elected), but the eviction not carried out until now. Mashaba vows to “get to the bottom of it” and rebuild the demolished structures timeously.

Marshall St, Johannesburg

Last October, the Red Ants were also involved in a mass eviction in the Joburg CBD. In this case, residents were not forewarned of the eviction and many of their personal possessions were destroyed, in a callous and brutal removal that took place while many occupants were at work. We can only imagine the horror of returning home to find your belongings damaged or destroyed and your home uninhabitable. Occupants of the Marshall St building were mostly domestic workers, taxi drivers and informal traders, vulnerable individuals with limited means either to replace their possessions or to take action against the city. In this case, according to Tshepo Skosana, the sheriff who carried out the eviction order did not act in accordance with due process of law and “was negligent in fulfilling his duty to inform the residents of their pending eviction, which made the process illegal”. The Red Ants were the purveyors of brutality, but not the cause of it.

Death in the Vaal

It’s bad enough losing one’s home, but eviction should not result in loss of life. Sadly, this is precisely what happened in April when an eviction in the Vaal area of Gauteng, again facilitated by the Red Ants, led to clashes with community members. Two died, one from the Red Ants and one from the community, and six were injured. Yet again, the Red Ants and the Sheriff were acting on a court order to remove occupants from illegally erected shacks. The casualties happened when a fight broke out between the residents and the Red Ants.

Duties of the Sheriff

As Eviction Lawyers in South Africa, we do not condone the construction of unlawful dwellings. Residents should act within the law in choosing a site and erecting a structure. However, the current housing situation in South Africa does not always make that possible. Although there is a comprehensive social housing strategy that includes RDP homes, Community Residential Units (CRUs) and Upgrading of Informal Settlements (UISP), waiting lists are long and government has fallen behind in meeting its housing commitments to the poor and vulnerable in our society. It is no wonder communities sometimes take matters into their own hands. Section 26 of the Constitution guarantees the right to adequate housing, so they are only claiming their constitutional rights.

But landowners also have a right to the proper use of their land, so they may seek an eviction order when homes are built illegally. However, the court has an obligation to consider all circumstances before granting the order. According to Skosana, if occupants will be made homeless, there must be provision of alternative accommodation for an eviction to be lawful. The court must also consider the number of women and children and old people affected by the eviction and this will influence the amount of time granted before the order can be served. Turning people out of their homes with no warning breaches these conditions and more. 

The Sheriff’s role is serve court documents. This includes orders of eviction. The Sheriff has a duty to inform the occupants of the situation, in terms they will understand, and this includes their right to be represented in court. The Sheriff is also obliged to treat everyone with dignity and respect, and ensure that belongings are properly looked after during an eviction. The use of violence and threats in effecting an eviction is an abuse of the Sheriff’s authority.

In all these cases the Sheriff acted together with the Red Ants to intimidate residents and damage or destroy their possessions. Neither party can claim that they implemented a legal process.

Protection under the law

Residential tenants are protected through the Prevention of Illegal Eviction Act (PIE) and the Consumer Protection Act (CPA). A stringent eviction process is meant to safeguard human dignity, property, and ultimately life! As a specialist eviction attorney we are diligent about observing lawful eviction procedure. We condemn the abuse of power recently demonstrated by the Sheriffs and Red Ants involved in these evictions.

Landlord or tenant – let us help you

Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you with an eviction matter, whether you are landlord or tenant. If you have been the victim of an illegal eviction, call us today.

Contact Eviction Lawyers South Africa on 086 099 5146 or email sdippenaar@sdlaw.co.za

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Rental arrears? Is it worth trying to collect?

What can you do when your tenant falls into rental arrears?

Nobody wants to fall into rental arrears, but unfortunately it happens. Times are tough, and the economic climate isn’t forecast to improve for some time yet, so it is all too common for tenants to default on their rental payments.

Arrear rentals - eviction lawyers

This is a stressful situation for both landlord and tenant and it must be approached with caution and a full knowledge of the rights of each.

What’s in the lease?

Depending on the specific lease agreement, in general, if a tenant is seven days late with their rental payment, they are then deemed, in the eyes of the law, to be in breach of the lease agreement.

It is up the landlord to inform the tenant in writing of the arrear rental, but the landlord does not have the right to immediately evict the tenant. Through this official notice, the landlord is giving the tenant the opportunity to resolve the breach of the lease agreement. A landlord can blacklist the tenant with credit bureaux at this point.

In general, if the tenant does not resolve the arrear rental within 20 days, the landlord can consider cancelling the lease, and suing for the arrears. The landlord may attach the tenant’s belongings in terms of the landlord’s tacit hypothec. They can also begin the eviction process. A landlord cannot evict a tenant without following the correct legal procedure. For that reason, if a tenant has defaulted on their rental payments, a landlord should obtain legal assistance as soon as possible.

Tacit hypothec

If a tenant falls into rent arrears, common law grants the landlord “tacit hypothec” over the tenant’s goods on the property. What does this mean in plain English? “Hypothec” is an old term, dating back to the 16th century and having its origins in French, which has survived in legal jargon and means “a right established by law over a debtor’s property that remains in the debtor’s possession”. Tacit means “implied” or “understood without being stated”.

When might the landlord’s tacit hypothec apply?

The provision for tacit hypothec is enshrined in Section 32 of the Magistrates’ Courts Act. Section 32 allows a landlord to apply for the attachment and, in certain circumstances, for the removal of a tenant’s movable goods in the leased premises, in lieu of rent owed. A landlord may choose to invoke Section 32 because it can be more effective than a rent interdict summons. Understandably, tenants will not want to see their possessions impounded and may respond more swiftly to this threat than to an interdict for payment of arrears.

How does it work?

The landlord applies to the Magistrate’s Court for an attachment under Section 32 in securitatem debiti – in other words, to secure the debt. However, if there is reason to suspect the tenant might abscond with the goods, the landlord can request an immediate order. This allows for removal of goods as security for unpaid rent without giving notice, because such notice could result in the tenant removing things in advance, thus rendering the landlord’s tacit hypothec worthless.

Burden of proof

It is the landlord’s responsibility to prove grounds for a Section 32 order. If the application is opposed and a dispute arises, resolution is based on the balance of probabilities. If this fails, there must be substantial doubt regarding the landlord’s case for the attachment to be set aside. Therefore, the landlord’s right to enjoy the rental income from a property is protected, but that right may not be abused by invoking Section 32 without due cause. In this way common law seeks to treat all parties equitably.

Costs and benefits of collecting arrears or invoking the tacit hypothec

As with anything in business, it’s important for landlords to weigh up the costs and benefits of any action taken. Loss of income through rental arrears is never pleasant but will the cost of recovering the lost rent be worth the effort? The benefit of invoking the landlord’s tacit hypothec is that it compounds the effectiveness of the eviction procedure. A tenant, particularly one with a history of flitting, may not be unduly fazed by an eviction notice. The threat of losing belongings may be taken more seriously. It adds litigation pressure and puts the landlord in a better bargaining position, resulting in more likelihood of the tenant meeting the rental demand. If the tenant has little of any value to attach, the landlord can apply for a long-term order. This is binding for 30 years against the occupier’s assets or salary, so there is no escaping!

On the other hand, there are legal costs involved. Although the tacit hypothec gives the landlord a bargaining chip, assets are not cash. It may be some time before the landlord can recover arrears and costs. If all else fails and the landlord takes the tenant’s goods to auction, to realise the rental arrears, the Sheriff costs can be in excess of R5 000. There are also storage costs to consider while holding the goods as collateral.

Time to cut one’s losses?

If the rental arrear is not substantial, e.g. R10 000 – 15 000, it may not be worth pursuing.  This is not to suggest that tenants should get away with not paying their rent. But if the proper procedures are followed, i.e. the tenant is given a chance to rectify the breach of the lease agreement, and the rent is still not forthcoming, it may be best to begin the eviction process and leave it at that. The sooner the recalcitrant tenant is off the property, the sooner a new occupier can be found and the income stream can start flowing again.

Eviction Lawyers South Africa can help

However, if your loss is significant, we can help you recover your rental arrears, using the landlord’s tacit hypothec if necessary Cape Town law firm SD Law & Associates are property and eviction lawyers in South Africa, with offices in Cape Town, Johannesburg, Durban and Pretoria. We uphold everyone’s constitutional rights and act for both landlords and tenants. If you’re a landlord with unpaid rent and you would like to take action, or if you are in rent arrears and think you may be subject to a Section 32 order, we can help. Contact Cape Town Attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

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Cyberbullying – it’s time to fight back

Cyberbullying is not just a problem overseas

Cyberbullying is on the increase, despite the rise in awareness of the problem and the emergence of new strategies and agencies to combat it. Reports of suicides induced by cyberbullying are common around the world, and South Africa is not immune. In February, a grade 6 learner in a Pretoria school took her own life after a photograph of her made the rounds on WhatsApp.

Cyberbullying in South Africa – some figures

According to a 2018 report by research company Ipsos Global Advisor, South Africa has the highest prevalence of cyberbullying out of 28 countries surveyed. The report indicated that more than 80% of South Africans are aware of cyberbullying and almost 75% of us believe anti-bullying measures are insufficient. Fifty-four percent of parents who took part said they know at least one child in their community who has been a victim of cyberbullying, an increase of 24% since 2011.

In Cape Town, university students take to social media to mock and torment others who fail to meet some unspoken standard of “coolness”. Our client, “A”, who was relentlessly pursued on Facebook with hurtful and damaging posts, eventually began receiving phone calls from undisclosed numbers with threats from a range of people claiming to be able to find her and worse. Although there were witnesses to the bullying, no one was willing to come forward publicly for fear of consequences. “A” said, speaking of her tormentor: “The horrible things she has done to people – two girls even contacted me to say that they had nearly commited suicide last year due to the way she attacked them on social media.” Cyberbullying can be as terrifying and real as any other form of bullying.

What is cyberbullying?

Unsurprisingly online harassment happens most often to young people, the generation that has embraced the digital revolution with the most fervour. However, those over the age of 25 are not immune to its devastating effects. Think of the vengeful ex who posts nude photos of the previous partner online in order to cause pain and embarrassment.

Perhaps the worst type of electronic harassment is cyberbullying, which the Cyberbullying Research Centre defines as: “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.” Put very simply, “cyberbullying is when someone repeatedly makes fun of another person online or repeatedly picks on another person through email or text message or when someone posts something online about another person that they don’t like.” Facebook and Twitter are common platforms for cyberbullying.

What are internet trolls?

While anyone of any age can be a victim of cyberbullying, the word tends to refer to the behaviour of adolescents and young adults. The term “internet troll” is defined by slightly different activities and usually refers to an adult. The Urban Dictionary’s top-rated definition of internet trolling is: “the deliberate act…of making random unsolicited and/or controversial comments on various internet forums with the intent to provoke an emotional knee-jerk reaction from unsuspecting readers to engage in a fight or argument.” Trolling tends to happen in comment threads, particularly on YouTube and Instagram, whereas cyberbullying often involves direct posts on Facebook or WhatsApp groups.

How much protection does our law offer against cyberbullying and trolling?

Here in South Africa we don’t have legislation specifically covering digital harassment (as they do in New Zealand), but the Protection from Harassment Act 2011 covers electronic as well as physical harassment. The Act includes sexual harassment, but it is important to note that other forms of harassment are equally damaging and protection is available under the law if you are suffering from bullying or character sabotage in cyberspace. The Protection from Harassment Act 2011 defines harassment as:

“…directly or indirectly engaging in conduct that the respondent knows or ought to know –

(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably –

(i) following. watching. pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;

(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues;

(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of  the complainant or a related person;

(b) amounts to sexual harassment of the complainant or a related person”

(Italics ours for emphasis.)

Stay safe from digital harassment

If you are being relentlessly targeted with abuse on social media or via email you can apply for a protection order under the provisions of the Act. At Cape Town lawyers SDLAW we can help you do that. But there is a lot you can do to keep yourself safe online. An article from BBC Newsbeat offers the following tips for staying safe online. This advice applies whether you are 15 or 50.

To stay safe online:

  • Don’t post personal information online, such as your physical address, your email address or cell phone number. Keep personal information as general as possible.
  • Never give anyone access to your passwords. Check the privacy settings on social media accounts and learn how to keep your personal information private.
  • Change passwords regularly.
  • Think very carefully before posting photos of yourself online. Once your picture is online, anyone can download it and share it or even change it. This is particularly important with photos that could be used against you, such as party photographs.
  • Never respond or retaliate to negative posts. Bullies like nothing more than a reaction. Don’t give them one.
  • Block any users who send you nasty messages on social media sites and delete anything they post on your page.
  • Never reveal your real name, your friends’ names, where you go to school or your place of work.
  • Don’t open emails, downloads or attachments from people you don’t know or trust as they could contain a computer virus or unwanted messages.
  • Block spam emails and delete them.

If you are the victim of cyberbullying:

  • Block the bully’s email address, phone number and delete them from social media contacts. Report their activities to their internet service provider (ISP) or to any websites they use to target you.
  • Never respond or retaliate, this can just make things worse. However difficult, try to ignore the bullies.
  • Make a note of the dates and times of bullying messages, along with any details you have about the sender’s ID and the URL.
  • Don’t pass on cyberbullying videos or messages.
  • If you’re being bullied repeatedly, think about changing your user ID, nickname or profile. It might seem unthinkable in the digital age, but consider taking a break from social media. If your profile disappears, there is nothing for bullies to target, and you will also have a respite from their debilitating behaviour.
  • Don’t ignore it if it happens to someone else. If you see cyberbullying going on, report it and offer your support.

Cape Town attorney can help

If you are not sure if the behaviour you are suffering is classed as harassment, we can review your situation and advise you of your rights. If you are the victim of cyberbullying, internet trolls or other online defamation, we can arrange a protection order against your assailant. Contact Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment. Don’t suffer in silence. The law is there to protect you.

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Cannabis: City announces joint venture

Cannabis to be grown for medicinal use in Cape Town

First in South Africa – Cape Town set to produce medical marijuana

In our practice and on this website we have followed the cannabis story closely, from the first ruling that cannabis consumption in private by adults would not be prosecuted on the basis of privacy laws, to the legalisation of cannabis for personal use by the Constitutional Court, to the passing of new legislation and the police directive by Police Commissioner General Khehla Sithole.

So we were delighted to learn that Cape Town is set to be the first place in South Africa to grow cannabis for medicinal use, in a partnership with Canadian company Canopy Growth. You could say it is a joint venture.

Cannabis creates jobs

Atlantis, 40 kilometres north of Cape Town, is a deprived area with high unemployment and a range of associated social problems. The cannabis initiative will make use of 12 hectares of vacant land in the area and will bring much-needed jobs to the local population and boost the economy. Approximately 250 jobs will be created in the Atlantis Special Economic Zone (ASEZ).

Medical innovation

The facility will cost R638 million to build, with a further R1.5 billion to be invested in Phase Two, over the next four years. The plant will produce cannabis-based pharmaceuticals, such as gel capsules, and puts South Africa in the global spotlight for medical innovation. One of the attractions of Cape Town as a location is our reputation for excellence in health care and health research.

South Africa ahead of the pack

South Africa is known for its progressive stance on many issues, backed by our robust, rights-based Constitution, which we at SDLAW take great pride in upholding. We were proud when South Africa introduced same-sex marriage and pleased when we legalised the private use of cannabis. As Cape Town attorneys we are delighted to see our fair Cape host the first venture of this sort in South Africa, once again proving that we lead the world in medical advancement, just as we did with the first heart transplant.

Here to help

If you need legal advice or assistance related to cannabis possession or consumption or on any other matter, contact Cape Town Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za. We are now in Johannesburg and Durban too.

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Curator Bonis – who cares?

When you might need…or need to become…a Curator Bonis

Cargin for loved ones when they can no longer are for themselves. Curatorships

When is a curator bonis necessary? Consider this scenario: your mother is getting on in years. She is becoming a bit frail and finds the day-to-day tasks of dealing with banking, bill paying, and other administrative matters a strain. She grants you Power of Attorney to assist her with her affairs. You can now pay her bills for her and represent her at the bank and other official outlets. Then her mental health deteriorates to the point where she is no longer lucid. “No problem,” you think. “I have Power of Attorney. I can continue to manage her business dealings for her. Glad we sorted that out.”

The limits of Power of Attorney

You could be forgiven for thinking this, but you would be wrong. In some countries, including the UK, Canada, Australia and New Zealand (notably all countries with strong links to South Africa, hence the common misunderstanding), Power of Attorney can remain in force in the event of mental incapacity. There are varying names for this: Lasting Power of Attorney, Continuing Power of Attorney or Enduring Power of Attorney. However, here in South Africa the Power of Attorney is valid only so long as the grantor of the power is in full possession of their mental faculties.

The legal reason for this is that the agent (the person to whom Power of Attorney is granted) cannot have more power than the principal (the person granting the power, i.e. your mother in our example). If your mother is incapacitated and you make decisions on her behalf, without consultation, you hold the balance of power, however benign your intentions. If you continue to exercise the Power of Attorney, which is deemed to have lapsed when the principal loses mental capacity, you are committing fraud and you could even be sued, for example by another member of the family.

The legal alternative

South African law, derived from Roman-Dutch law, makes provision for these circumstances in the form of curatorships. There are three types of curatorship that apply to caring for someone no longer able to make decisions. The process of appointing a curator is lengthy and costly, but justifiably so. Legal rigour is vital to ensure the rights of the incapacitated person are upheld and they are not taken advantage of by an unscrupulous relative or friend. A recent case before the High Court of the Western Cape involved (among other things) the marriage of a woman to a man in a frail care unit who was deemed mentally unable to understand the implications of a marriage contract. Such abuse of affection does happen, but the law attempts to mitigate the consequences as much as possible.

Curator Bonis

Rule 57 of the Uniform Rules of Court allows the court to appoint a Curator Bonis to look after the financial affairs and assets of the incapacitated person. The Curator Bonis, according to the Department of Justice and Constitutional Development, has the power:

  • To receive, take care of, control and administer all the assets
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
  • To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

Often the Curator Bonis appointed will be a lawyer, rather than a family member, because the duties are onerous and may be too much for someone who is also providing personal care to their loved one and in all likelihood holding down a job and looking after their own family at the same time.

The Curator Bonis is accountable to the Master of the High Court and is required to submit annual accounts, detailing all expenditure and providing all receipts on behalf of their charge. The system guarantees transparency but is a lot of work. A Curator Bonis is paid, but the statutory provision is modest. They may receive:

  • An annual fee of 6% on gross revenue accrued from assets (such as dividends, pension, interest and rental income). If the assets are non-income earning, e.g. residential property or gold, jewellery, etc., the Curator Bonis must apply to the court for a special fee
  • A one-off fee of 2% of capital on the date the curatorship ends (when the person dies or is released from curatorship)

Curator Ad Personam

A Curator Bonis is responsible for the property of the person they represent. As such, they can make decisions about assets and financial matters, as detailed above. If there are personal welfare or health issues to decide, such as whether or not the individual should undergo surgery, or move into a frail care facility, a Curator Ad Personam must be appointed. The process for this is less formal than for a Curator Bonis, and may be terminated should the ill person recover (though in the case of dementia this is unlikely). The Curator Ad Personam is often a family member, as they are more likely to have intimate knowledge of the person’s wishes, such as whether or not extraordinary measures should be taken.

The process – Curator Ad Litem

There is a third type of curator – the Curator Ad Litem. This is a legal role and the person performing this function may never meet the individual requiring curatorship. Let’s say you believe your mother can no longer make decisions for herself, and you feel she needs a Curator Bonis, and possibly a Curator Ad Personam. How do you make this happen? As we’ve suggested, the process is exhaustive. Firstly, you apply to the court for an order declaring your mother to be of unsound mind and incapable of managing her affairs. In order to bring this application, you must secure supporting affidavits from two medical practitioners, one of whom must be an “alienist”, in other words a registered psychiatrist or neurologist.

The court will then appoint a Curator Ad Litem. This is usually an Advocate, appointed by the applicant (you) or your attorney. The Curator Ad Litem’s job is to represent your mother and investigate the facts. They will report their findings to the Court and the Master of the High Court.

Only after that will the Curator Bonis and/or Curator Ad Personam be appointed, on the recommendations of the Curator Ad Litem. The appointment can only be made by the Master of the High Court, who will also write a report, either accepting or rejecting the outcome of the Curator Ad Litem’s report. The total cost of the process is c.R20 000 – R40 000.

The alternative – an administrator

Where the incapacitated person has very modest assets, the cost of appointing and then supporting a Curator Bonis may not be economically viable. If your mother’s assets are R200 000 or less, and/or her annual income is R24 000 or less, you may apply to the Master of the High Court to appoint an administrator in terms of the Mental Health Care Act. The cost of varies but is c. R2 500.

However, administration is only permitted, in terms of the Mental Health Care Act, for “a mentally ill person or a person with severe or profound intellectual disability”. This excludes anyone unable to manage their affairs due to physical handicap, serious illness or old age, unless they are suffering from dementia. If their decision-making ability is impaired but is not defined as mental illness or intellectual disability in terms of the Mental Health Care Act, the Court will not sanction administration.

Protect your loved ones!

We all want to think that our family members are safe and free from risk of harm or abuse, whether emotional or physical. Sadly, we only have to listen to the news to know that older people are often neglected or exploited. The modern nuclear family means that we are not always around to check in on elderly parents every day. And it can happen that a fortune-seeker steps into the breach and then proceeds to take advantage of diminished faculties, coercing the frail person into changing a will or even marrying them, as in the case mentioned above.

If your family member is not mentally stable and you fear they are being financially or physically abused, you need legal representation. Cape Town lawyers SDLAW can help you secure the appropriate curatorship for your loved one and protect them from exploitation. We can also make sure their will is in order and the estate is protected.

Contact us for more information

Cape Town attorneys SDLAW can guide and support you through the process of appointing a Curator Bonis or Curator Ad Personam. We know this is a difficult time for a family and will handle your case with sensitivity and the utmost discretion. If you would like to discuss your situation in confidence, on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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Eviction cost

How much does it cost to evict a tenant?

Eviction is an unpleasant word. It conjures up images of an uncaring landlord putting an unfortunate tenant out on the streets. It’s true that there are cases of unfair evictions. But for the most part, rental housing legislation now provides considerable protection to tenants and prevents the abuse of power by landlords that sometimes happened in the past.

Eviction cost - eviction lawyers

The law protects tenants…but it also assures property owners of certain rights. If you own property and it provides you with valuable income, you are entitled to enjoy your property and benefit financially from it without suffering misuse or abuse at the hands of your tenants. If the worst happens and you need to evict your tenants, what is the cost of eviction?

When should you consult an eviction attorney?

If the landlord-tenant relationship is harmonious, and both parties uphold the lease agreement, the word “eviction” is unlikely to arise. Eviction is the last resort when there is an unresolved breach of the lease. A breach can happen for a number of reasons, which may include failure to maintain the property or adhere to the conditions of the lease, but the most common cause for eviction is default in payment of rent. However, a landlord cannot simply evict a tenant for rent arrears. In fact, a landlord can’t evict a tenant at all. Only the courts can do that.

However tempting it may be to “do it yourself”, eviction is a legal process and it requires an eviction attorney. While you may wish to avoid eviction costs, delay in consulting an eviction lawyer can be a false economy. As the rent arrears pile up, you are losing money that may never be recovered. Spending money on expert eviction attorneys will ensure a speedier, smoother course of action and is likely to save you money in the long run – by limiting your losses and restoring the property to its income-earning status.

How much does an eviction cost?

The cost of an eviction will depend on the complexity of the situation. If a tenant is very stubborn and refuses to vacate the property, eviction costs can mount. An unopposed eviction will cost between R5 000 and R15 000. However, if the eviction is opposed, the cost can escalate to as much as R100 000 and the months can drag on. This is not a job for a layperson. Provided your eviction attorney follows the correct process, the court will award the eviction order – eventually – but getting the tenant out is another matter.

 

Call the Sheriff!

The court may grant your eviction order, but if the tenants simply dig their heels in and refuse to move, you may not legally remove them or their possessions from your property yourself. Only the Sheriff is authorised to do this. If you need the services of the Sheriff to forcibly effect the eviction, the cost will depend on the size of the property and the number of tenants. You can expect to pay from R1 000 to R10 000 in Sheriff’s costs.

Women and children first

Remember that PIE gives special consideration to vulnerable tenants – woman-headed households with children, the elderly and the disabled – so while you are not prohibited from evicting these tenants if they are in breach of the lease, you must allow them more time to find suitable alternative accommodation. This will add to your lost earnings and effectively increase the eviction cost, although it won’t generate additional legal costs.

Can you claim the eviction cost from the tenant?

While it may be technically possible to reclaim eviction charges from the tenant, in reality you are very unlikely to succeed in recouping your costs. If your tenant has defaulted on rent due to inability to pay, you may struggle even to recover the rent you are due. Expecting a financially stressed individual to come up with a five-figure sum in addition to unpaid rent is fanciful. You could sue for it, but the result will be the same. You can’t get blood out of a stone.

Consult a good eviction attorney

As we’ve highlighted, an eviction lawyer is essential if you have a troublesome tenant who doesn’t respond to reason and eviction is your only recourse. You can attempt to obtain an eviction order from the court yourself, but if you are not well versed in rental housing law your chances of success are much reduced. An eviction lawyer knows the intricacies of PIE and will make sure you don’t lose your case on a technicality.

Furthermore, an eviction attorney will save you money, despite the fee charged. If your rental income is R10 000 – R 20 000 per month it won’t take many months of rent arrears to lose you far more than your eviction will cost in legal fees. Cape Town lawyers Simon Dippenaar and Associates are experts in eviction law and will make sure your property is returned to its income-earning status as soon as possible! Contact Cape Town Eviction Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Source: Eviction Specialists

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Parental Alienation and the Child

Deliberate parental alienation harms the child more than the parent

When divorcing or divorced parents engage in tactics that give rise to parental alienation, the individual who suffers the most is the child. It may be tempting for an aggrieved parent suffering through an acrimonious divorce to want to portray the other parent in the worst possible light. Hurt and anger can cause a parent to denigrate the partner in front of the child, causing parental alienation or its more severe sibling, Parental Alienation Syndrome. If one parent feels isolated and betrayed, it’s a natural response to want the child or children “on side”. However, whether the other parent deserves the label of villain or not, this behaviour is extremely harmful to the mental health of the child.

A parent-child pair experiencing parental alienation can rebuild a trusting relationship. It takes time and patience but is important for mental wellbeing.

No one is innocent – except the child

According to Cafcass, the UK’s Children and Family Court Advisory and Support Service, parental alienation is rarely one-directional, i.e. aimed at one parent by the other. More commonly, it is a complex set of behaviours that may impact on every transaction within the family. The post-separation environment is a high-conflict zone. Rarely is one parent entirely the victim and the other solely the perpetrator of emotional punishment. When parents are at war, the child becomes collateral damage.

Impact of parental alienation on a child

Parental alienation is emotional child abuse and should be treated as seriously as any other form of abuse. Despite this, it is often not recognised or acknowledged in child custody disputes. The alienated child often feels insecure, anxious and overwhelmed, experiencing feelings of guilt and confusion.

The alienated child may be confused as to the adult-child role, particularly if they are older, i.e. pre-teen or teenage. Triangulation, the emotional manipulation of the child to create an emotional partner, is a common feature of parental alienation. In this scenario the child feels responsible and obliged to step in and protect and care for the victim-parent. The child is robbed of the ability to form trust (the cornerstone of relationships) in intimate relationships and lacks confidence in forming and maintaining healthy relationships. The child may also display clinging behaviour and separation anxiety. They may develop anxiety and have poor peer relationships and other mental health issues. The alienated child suffers from a loss of a sense of self and is placed within a situation that is emotionally beyond their coping ability.

Anyone working with the child or the family should be alert to these symptoms and prepared to step in.

What can be done?

As per the philosophy behind the Children’s Act, the interests of the alienated child must come first. Whether parent, grandparent, caregiver or professional mediator, anyone playing a role in the child’s life must view every family interaction through the lens of the child. The focus should be firmly on the alienated child and the factors that have contributed to the alienation. Then it is critical that steps are taken to rectify the situation. There is no evidence to show that waiting for alienation to resolve itself is effective, nor should children be allowed to decide which parent they should live with.

Rebuilding trust step by step

There are many instances of adults who were permanently alienated from one parent as children and have suffered life-long emotional consequences. To prevent this long-term outcome, there are ways to rebuild trust and re-establish a loving parental relationship. The child and alienated parent need to be assisted in the process of re-attachment, which must be sensitively phased and take account of the child’s developmental level, maturity and emotional resilience.

Here in South Africa and in other countries there are various psycho-educational and family therapy programmes that attempt to help severely alienated children of divorce rebuild the damaged relationship with the alienated parent. These programmes aim:

  • To initiate contact between the alienated parent and child
  • To provide psycho-educational training to the parents
  • To develop child-focused parental involvement
  • To re-establish reality and correct distorted perceptions of the self, both by the child and by the parents
  • To relieve the burden on the child and distance them from the conflict of loyalties between the parents
  • To rebuild the fractured emotional relationship by creating new shared experiences in a structured, safe and relaxed environment
  • To restore communication
  • To improve conflict management and family dynamics

Through these programmes children re-learn a healthy and balanced view of both parents and gradually renewed and happy parent-child relationships can develop. But it takes time. However hard it may be, the alienated parent must be patient.

Is this you?

Have you experienced parental alienation? Are you estranged from your child or is your contact with your child traumatic due to symptoms of parental alienation? Cape Town Divorce Attorneys, Simon Dippenaar & Associates Inc. is an established Cape Town family lawyer with extensive expertise in divorce and family law. We will ensure your legal rights are upheld and can link you to the appropriate support that will enable you to restore your relationship with your child.

Cape Town Attorneys and Lawyers,  Simon Dippenaar & Associates Inc. has a reputation for empathy and professionalism, with a personal touch. We will listen to you and help you find a solution that is in the best interests of all parties – most importantly the child.

Call Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Read what satisfied clients have to say about Simon Dippenaar & Associates, Inc.

 

Further reading:

 

 

REEVA STEENKAMP FOUNDATION ENDORSEMENT 
“On behalf of all abused woman and children The Reeva Rebecca Steenkamp Foundation would like to thank Simon Dippenaar from SD Law South Africa for going beyond and assisting our client with a very difficult case.
Family Law requires a very special person, just being a good lawyer is not enough.”

 

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Cannabis law – what Sithole told the police

Parliament has amended legislation regarding dagga use and police officers have received instruction from the Police Commissioner

 

Dagga possession and cultivation - the law changes

We wrote last year about the Constitutional Court ruling regarding dagga, or cannabis. The ConCourt judgement effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. The definition of “in private” extends beyond one’s place of residence and includes public spaces, as long as the possession is in a private place, e.g. a pocket, and is discreet.

However, a court judgement, even by the highest court in the land, is not in itself legislation. It was necessary for Parliament to amend legislation before the law could officially be declared changed in response to the ruling. In the interim, police were in the arguably awkward position of having to use their judgement and discretion when faced with circumstances of cannabis possession.

National Prosecuting Authority issues guidelines

Parliament has acted swiftly to change the relevant legislation concerning cannabis and the National Prosecuting Authority (NPA) has issued guidelines to prosecutors to ensure criminal procedure reflects the amended laws. These guidelines have also been delivered to the South African Police Service (SAPS) by Police Commissioner General Khehla Sithole. If you use dagga there are important things you should know.

Cannabis law rewritten

The two primary pieces of legislation concerning cannabis law are the Drugs and Drug Trafficking Act 1992 and the Medicines and Related Substances Control Act 1965. Both have been officially amended to reflect the Constitutional Court judgement. Other legislation, i.e. the Children’s Act 2005, the Child Justice Act 2008 and the National Road Traffic Act 1996, has also been impacted in a lesser way. The Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act now specifically allow for the possession and cultivation of cannabis for private use. Personal consumption of dagga has been decriminalised.

Still an offence…

It is very important to note that dealing in cannabis is still a criminal offence, as is the use of cannabis by children or in the presence of children. Furthermore, driving under the influence of dagga contravenes the National Road Traffic Act, which prohibits “driving under the influence of a drug which has a narcotic effect”.

Smoking cannabis in public is not permitted – it is only the possession and not the use of the substance that is allowed in public, provided it is in a private space (pocket, bag, vehicle). So smoking in the street, in bars or at a rock concert is still an offence.

Determining private use

Because “private use” can take place outside the home, police officers must still rely on their judgement when they find someone in possession of cannabis. The legislation has not specified a quantity that defines private consumption or, conversely, one that constitutes dealing in the substance. Police officers must use discretion in deciding if the amount possessed is for personal consumption or not, and must furthermore ask a series of appropriate questions to satisfy themselves on the matter.

If the police officer is satisfied that the cannabis is for private consumption, then no arrest may be made and the substance may not be seized. If there is any doubt as to the intention to use the cannabis privately, the officer must not make an arrest but must rather open a docket and bring the individual to court by means of summons.

Cannabis law summarised

In summary, here’s what the amended legislation has decriminalised…and still prohibits:

  • Adults may use or possess cannabis in private for personal consumption
  • Adults may cultivate cannabis in a private place for personal consumption
  • Private use is not confined to a home or private dwelling
  • No quantity has been prescribed as constituting private use

  • Possession or use by a child (under age 18) is still prohibited
  • Use of cannabis around a child is prohibited
  • Dealing in cannabis is prohibited and is still a serious criminal offence
  • Cannabis use “not in private” is an offence

Police are accorded a large amount of discretion, which may lead to inconsistencies in implementation. Where there is a clear indication that the cannabis does not qualify as personal consumption (which the guidelines define as “large quantities” and/or an “unsatisfactory explanation”), then normal police procedure must be followed. This includes seizure of the cannabis and the registering of criminal charges and may or may not include arrest, depending on circumstances (e.g. if the suspect poses a flight risk). How these guidelines may be interpreted by different police stations or officers remains to be seen.

Legal advice is still a good idea

The amendments to cannabis use legislation are fresh and the police directive has only recently been issued. It is reasonable to expect police officers to require a period of adjustment. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146 or +27 76 116 0623.

 

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