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Aug 27, 2019

Gender pay gap – alive and kicking

Women are still not paid equally for equal work

gender pay gap

Last year during Women’s Month the world was focused on the Harvey Weinstein case and the #metoo campaign, which emerged in the wake of a parade of women coming forward with harrowing tales of sexual abuse and sexual harassment at the hands of Weinstein and many other celebrities. Over the course of the past year we have learned that male sexual predation is not only commonplace but normalised and even lauded in many cultures. Donald Trump dismissed his own brags about groping women as “locker room talk”, in other words just something guys do. Following these revelations a conversation developed about “toxic masculinity”, defined as “a set of behaviours and beliefs that include…suppressing emotions or masking distress; maintaining an appearance of hardness; [and] violence as an indicator of power.” Sociologists also talk about “enhanced femininity” – Erving Goffman said that women are socialised to be “precious, ornamental and fragile,” and to display “frailty, fear and incompetence.” While women rarely pretend to be frail and incompetent these days, there is still social construction around what is considered feminine. When enhanced femininity meets toxic masculinity, the outcome is predictably unfortunate and sometimes tragic.

These issues are important – vital, even. South Africa has a culture that objectifies and derides women and results in the highest incidence of rape in the world. We must confront social norms and change them when they do not promote a fair, equitable and just society. But equally important, and somewhat buried in the emotive narrative of #metoo, is the practical aspect of gender equality: equal access to opportunities and equal pay for equal work.

South Africa has a very real gender pay gap

A report just released by management consultants PwC revealed that women in South Africa are paid less than men, not just in certain industries or occupations, but across the board. There is no industry where women are paid more than men. For example, in the major industries of technology and financial services, men are paid 22.9% and 21.8% more respectively. In health care men are paid c. 28.1% more than women, and 25.1% more in media and general retailers.

The global picture

The World Economic Forum introduced the Global Gender Gap Index in 2006. It is a framework for measuring gender-based disparities in four areas – Economic Participation and Opportunity, Educational Attainment, Health and Survival, and Political Empowerment. It is published annually and tracks progress made against these important indicators. The 2018 report reveals that the Global Gender Gap score is currently 68%. This means that, on average, there is still a 32% gap to close. The most equal country is Iceland, followed by the other Nordic countries. But somewhat surprisingly, Rwanda and Namibia are in the top 10, which makes South Africa’s position all the more indefensible.

South Africa has the nineteenth smallest gender gap out of 149 countries. However, this overall ranking belies a much poorer standing on two of the four dimensions. Our aggregated score is buoyed up by strong results in Political Empowerment and Health and Survival. When it comes to Educational Attainment we rank 72 out of 149 countries, and even worse in Economic Participation – 91 out of 149, with a score of 64.5% gender equality. Clearly we have a long way to go to attain the equal rights envisaged by the authors of our Constitution.

Public vs. private sector

It probably comes as no surprise to find that the private sector is less equal than the public sector. After all, it would be harder for government to justify defying its own equal opportunity legislation. However, it needs to do more to see that laws are upheld. Labour law expert Bridgette Mokoetle says that women are often denied opportunities with excuses such as lack of work experience. Laws and policies that exist to ensure equal pay for equal work are not adequately enforced.

Differences top and bottom of the spectrum

An interesting feature of the pay gap is that it is worse in higher-earning jobs. This is because previous disparities in low-paid jobs, where women were often discriminated against and paid much less than men in jobs of equal value (e.g. domestic worker/gardener), have been remedied by the introduction of a minimum wage. However, at the other end of the spectrum, women are under-represented in senior positions, which is reflected in the managerial pay gap statistics, according to research by UCT’s Jacqueline Mosomi. Women still occupy lower-paid jobs, i.e. administrative and less technical occupations than those in which men are more prevalent.

Social researchers Kahn and Motsoeneng suggest that women’s under-representation in senior management is related to a shortage of women with suitable qualifications as a result of racial segregation in the past and discrimination against women in general. Black women in particular have been victims of both racism and patriarchy, so are particularly under-represented at senior level.

In the middle of the earnings distribution spectrum, the gender wage gap has moved very little since pre-democracy. Men still earn 23% to 35% more than women. The majority of occupations in this middle ground are male-dominated, such as service, craft or operational work.

What’s the solution to the gender pay gap?

The onus to close our gender pay gap – and to rectify other gender inequalities in our country – lies with our legislators. Policies and laws exist to ensure equality, but their enforcement is piecemeal and indifferent. B-BBEE legislation has been tightened and employment equity in terms of race is improving, as a result of a concerted commitment to transformation. Black women are of course included in overall B-BBEE indicators, but the focus is on race, not gender. B-BBEE compliance does not in itself address the gender pay gap.

Business owners also have a responsibility to review pay scales and distribution of women in key roles, including those all-important median occupations mentioned above, and to investigate their recruitment practices and ensure equal opportunities exist in practice, not just on paper.

Parents and educators need to encourage girls and young women to consider careers in STEM and tech-related fields, and to stop categorising occupations as “male” or “female”.

Kahn and Motsoegeng recommend that the priorities for closing the gender pay gap are: fighting discrimination, supporting training and development, and providing women with better access to career development.

And finally, we all, whatever role we play in the workforce and in society, need to examine our own mindsets and ensure we live the values of our Constitution. We need to be non-racial, gender-neutral and inclusive in our values and our conduct. This is the only way we will transform our society and close all the gender gaps, not just the pay gap.

If you are the victim of gender pay discrimination

Unfortunately, much pay inequity is not illegal. However, genuine discrimination, which our legislation prohibits, does still exist. If you think you have been the victim of gender, race or any type of pay discrimination at work, contact Cape Town attorneys. We will investigate your case and support you at the CCMA or help you bring a private matter before your employer.

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. SD Law and Associates are experienced Cape Town lawyers who are committed to Constitutional justice and human rights for all South Africans.

Aug 27, 2019

Klein Akker Evictions – update

300 people made homeless in “legal” eviction

Activists and concerned citizens are outraged at the treatment of residents on Klein Akker farm in Kraaifontein. In an act of eviction that is legal but nonetheless inhumane, 300 poor and vulnerable occupants have seen their homes demolished before their very eyes and left by the side of the road, without blankets, clothing or children’s school books. Possessions have either been destroyed or put in storage, where residents can’t access them.

Klein Akker Farm Eviction - It was legal, but was it moral?

Eviction order

Many residents had lived on the Klein Akker farm for 20 years or more. They were part of a community and they looked after each other. Some had come initially as fruit pickers. When the farm was sold in 2012 and the current owner ceased growing fruit, workers found employment on nearby farms but continued to occupy their dwellings. The owner applied for and was granted an eviction order in October 2017. Residents successfully applied for a stay of the eviction until 1 July 2019.

In accordance with legislation, the City of Cape Town offered alternative accommodation. But the options provided were unacceptable to residents, for reasons of distance and unaffordability of transport to work, and safety. One location was Philippi, which is known for gang violence. Furthermore the land offered at Philippi was sodden and completely unsuitable for housing.

The eviction was completely legal, but was it moral?

Disregard for human rights

On Monday (19 August) law enforcement officials and security guards arrived at Klein Akker and began demolishing shacks with machinery. Clothes and possessions were seized. Children’s school uniforms were taken and put into storage, along with cooking pots and food. Residents were left by the side of the road with nothing to eat and no way to keep warm. The City of Cape Town has defended its position because it twice offered the residents alternative accommodation.

The South African Human Rights Commission (SAHRC) argues that the eviction represents multiple human rights violations, including the right to adequate housing, the right to water and sanitation, the rights of children, the right to a basic education and the right to human dignity. The SAHRC applied to the Western Cape High Court on Wednesday (21 August) to challenge the eviction, and supported the counter application by the Legal Resources Centre for emergency accommodation and constitutional damages for the victims of the Klein Akker eviction.

UPDATE:

On Monday (26 August), the Deputy Minister of Agriculture, Land Reform and Rural Development, Mcebisi Skwatsha, committed his department to housing the families who were evicted from the Klein Akker farm in Kraaifontein last week. They are to be temporarily accommodated on a state farm near Stellenbosch. He was shocked by the conditions in which the 93 households were living, following a visit to the site on Monday morning. He said, “As leaders, we cannot just fold our hands while people living on the streets. We have a responsibility to take care of the people, especially at these difficult times like this one.” Source

Last week, following the evictions, the High Court ruled that the City of Cape Town must “make available within 24 hours of this order, temporary emergency shelter in the form of land and emergency housing kits at the emergency housing site known as Kampies, Philippi”. Source

However, the Philippi site had already been rejected by residents as unsuitable for habitation. The intervention from the Deputy Minister is likely to be far more welcome.

Championing fair evictions

At SD Law, we believe property owners have the right to enjoy their property. We also believe that tenants should be treated fairly and justly. We act for both landlords and tenants and have a deep understanding of the relevant legislation. But our insight goes further than that. We are Cape Town attorneys with high emotional intelligence. We seek legal solutions that incorporate moral and ethical conduct and respect human rights. If you have an eviction matter, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. We’ll never leave you stranded.

Aug 20, 2019

Help! There’s an arrest warrant out for me

What to do if an arrest warrant is issued against you

If you are caught in the act of committing a crime, you will be arrested. At that point you need the services of a good bail lawyer. But what happens if an arrest warrant is issued against you? In this case you have not actually been arrested, but the threat of arrest hangs over you like the legendary sword of Damocles. What does this mean, and how can you go about having the threat, i.e. warrant, lifted?

Here's what to do if there's an arrest warrant out for you.

What is an arrest warrant?

A warrant for your arrest is issued if you fail to appear in court when you have been subpoenaed and are in contempt of court, or if you are in breach of a court order, such as a protection (or restraining) order. You will either be arrested if you do nothing, i.e. fail to rectify the contempt of court, or if you do something you are not supposed to do, i.e. try to visit or telephone the person you are restrained from having contact with. In the latter case the warrant will apply as long as the protection order is in force, and there is nothing you can do about it. The good news is…as long as you comply with the terms of the court order, you need not worry.

But if a warrant is issued for your arrest on the basis of contempt of court, you need to take action. Let’s look at the different scenarios that might arise and what you should do.

You missed a court date

You may have received a summons to appear in court, either for something you did (traffic fines, etc., which we’ll come on to) or to provide information, perhaps as a witness. Even if you have not committed an offence, failing to appear in court is in itself an offence. But life happens, and dates get mixed up, children get sick, the car breaks down, etc. If you miss a court date and subsequently remember, don’t sit at home and wait for a second invitation. Go immediately to the court and speak to the clerk of the court. The clerk will find your details on the system and refer the matter to the magistrate. Depending on the circumstances, the magistrate may forgive the oversight and simply set a new date for your court appearance, or they may issue you with a fine. Whatever you do, don’t wait for the police to appear at your door and arrest you.

Two weeks’ grace

The court will generally hold over a warrant for arrest for non-appearance for two weeks, allowing you a grace period to remember and correct your mistake. It will then be sent to the police station local to your address; and it will be the responsibility of the local police to carry out the arrest. This usually takes place early in the morning, if you are lucky, or late in the evening – times when you are most likely to be at home. If it comes to this, you’d better hope the knock on the door comes pre-dawn, so you have all day to sort out your bail. Otherwise you won’t be sleeping in your own bed that night! Much better to avoid the situation altogether. Rectify your error as soon as you become aware of it.

You have overdue traffic fines

With the use of speed cameras becoming more and more common, it’s possible to amass multiple speeding fines on a single journey. Maybe you ignore these when they arrive in the post, or maybe you mean to pay them and then forget. The parking ticket left on your windscreen may suffer the same fate. If traffic fines mount up unpaid, or if you ignore a single summons to appear in court, which may be buried in the small print of the ticket, i.e. “if you fail to pay by [date], you may be liable to a court appearance” (or words to that effect), a warrant could be issued for your arrest. You may not know anything about this until you are stopped in a routine roadblock and the police officer runs your driving licence through the system. Or you may be on your way to your dream holiday and detained when you present your passport at the airport. If either of these scenarios occurs on a Friday night, you know where you’ll be spending your weekend, and it won’t be a on a beach somewhere.

Pay online

Historically, it was not possible to pay overdue fines in the usual manner – i.e. via the AARTO website. This has now changed. Perhaps due to the waste of resources spent bringing otherwise law-abiding citizens to court, in a country with a high crime rate and an overstretched law enforcement service, or perhaps in an effort to maximise revenue, AARTO now permits overdue traffic fines, along with the “admission of guilt” penalty, to be paid online. Note that this only applies to South African citizens and permanent residents with a South African ID number. If you are a foreign national, you must still pay offline. It’s not clear if overdue payments are accepted in the same way for non-South Africans.

Fortunately, you can also search for your fines on AARTO. Although there is some contention over the validity of a ticket sent by post, given our unreliable postal system and the lack of any proof of delivery or receipt, it’s not worth taking the chance. Being arrested, and needing the services of a bail attorney, will cause you far more grief and expense than paying your fines. After all, if you parked illegally or exceeded the speed limit, the fines are a reasonable penalty for breaking the law.

Breach of a court order

In this scenario you cannot act to remove the arrest warrant. The nature of a restraining or other court order is that you are allowed to move freely in society only so long as you observe the conditions of the order, which exist to protect an individual or the community against whatever threat you represent. Think of the court order as a suspended sentence. The arrest warrant will remain in place until the order is lifted or expires. But the solution to the arrest warrant is, in this situation, beautifully simple. Comply with the court order and you have nothing to worry about.

Don’t get yourself arrested!

There may be some scenarios in which an arrest warrant is issued against you, and you genuinely know nothing about it. You may have received a summons that you honestly misplaced and forgot, perhaps during a period of upheaval in your life. If you do get that pre-dawn knock on the door, or are detained in a roadblock, call us immediately to help you. But in the vast majority of cases, you can resolve the matter before it results in your arrest. Check your fines on AARTO. If you have any reason to suspect there may be an arrest warrant in your name, you can visit your local police station and check the register. If you miss a court date, go straight away to the clerk of the court to sort things out. Don’t let fines mount up or assume that the magistrate will forget about you. Neither will happen, and you will only make your situation worse by ignoring it.

Know a good bail lawyer

If you are at all worried that there may be an arrest warrant pending against you, contact Simon on 086 099 5146 / 076 116 0623 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Cape Town Attorneys SD Law and Associates are experienced criminal lawyers who are available 24/7, 365 days a year. We won’t let you down.

Jul 27, 2019

International child custody

Posted on Jul 27, 2019 by Divorce Attorney Cape Town

TAKING CHILDREN ABROAD POST-DIVORCE

Moving overseas with a child is subject to certain conditions. Don't fall foul of them.

It is becoming increasingly common for couples to marry across borders. International travel is more accessible and over the past decade there has been an influx of immigration into South Africa, resulting in more marriages between partners of different nationalities. Inevitably, some of these marriages will end in divorce. Equally predictably, some parents will want to return to their country of birth with the children of the marriage…in other words they will seek international child custody.

In this post we will look at 1) how you can do that legally and 2) what to do if the other parent has removed your child to another country without your consent.

INTERNATIONAL CHILD CUSTODY: WHAT THE LAW SAYS – THE CHILDREN’S ACT 2005

South African law does not explicitly govern international child custody, and relocation with children post-divorce. All matters concerning children are legislated by the Children’s Act 2005. This progressive piece of legislation takes the focus away from the rights of the parents and places the child at the heart of all decisions. “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9). The Children’s Act does not directly mention the relocation of one parent or the other, nor does it legislate consent procedures. However, Section 18 stipulates that consent of both parents is needed if one or other wants to emigrate with the child(ren).

The wellbeing of the child extends beyond simple contact with each parent. In some cases the move might be in the child’s best interests. For example, if one parent has an employment opportunity overseas that will significantly enhance the quality of life or environment the child experiences, that situation may be considered as good for the child as remaining near the non-custodial parent. South African law has tended to decide international child custody matters on a case-by-case basis. Furthermore, the views of the children will be considered, though not necessarily accommodated.

While relocating with a child is not as difficult as you might think, it is still a situation that needs to be handled carefully and with due consideration for the law. Failure to follow the correct procedures could have unwelcome consequences down the line. Furthermore, once a child is settled in an environment, even a foreign one, courts are usually reluctant to disrupt the child’s wellbeing by reversing an earlier decision. So if you are considering moving abroad with your child, or if your child’s other parent is relocating with your consent, it is a good idea to take legal advice regarding international child custody. Cape Town family law firm SD Law will ensure your conduct complies with the Children’s Act, in letter and in spirit. We will look after the interests of the child while at the same time respecting your wishes and those of the other parent.

INTERNATIONAL CHILD ABDUCTION

International child abduction is a much more serious matter and is increasingly common globally, as air travel becomes more affordable. The abducting parent may not think of themselves as such or even realise that their behaviour is classed as abduction.

International child abduction is monitored (note – not governed; it is not a piece of legislation) by the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention is an international treaty designed to prevent the removal of a child from their home jurisdiction by a parent (or other caregiver) without the consent of the other parent. It also aims to return a child thus illegally removed to their home country. South Africa has been a signatory to the Hague Convention since 1 October 1997 (ratified in 1996).

The Hague Convention defines the removal of a child as improper if it breaches the custody right of anyone based on the laws of the nation where the child was resident prior to their removal. Where two parents have shared (equal) care of a child (i.e. custody), both parents must give consent for a child to be removed, as also required by Section 18 of the Children’s Act. When there is a dispute about a child’s care between countries that are both signatories of the Hague Convention, the courts of the destination country are responsible for returning the child, if appropriate, i.e. unless there is a risk of a human rights violation such as female genital mutilation, and as quickly as possible. Under the Hague Convention, the return should be effected within six weeks.

INTERNATIONAL CHILD ABDUCTION: THE HAGUE CONVENTION IN AFRICA

Unfortunately, only South Africa, Mauritius and Zambia are signatories to the Hague Convention on the African continent. This can make the return of the child more complex, and naturally many marriages in South Africa are between nationals of African countries. Therefore the Hague Convention does not apply. The Convention only applies to wrongful removals that occur after the treaty comes into effect between two countries.

The return of a child, whether from a Hague Convention signatory country or other, is a matter for the Central Authority in South Africa (the Family Advocate’s Office). You can approach the Central Authority on your own behalf, but it is strongly advised to use the services of capable family law attorneys to lodge an application to court. The Central Authority can be overwhelmed with child abduction applications and a good divorce lawyer, with deep knowledge of child law, can navigate the pathway more expediently than a private individual. The Central Authority will oversee the process. Your legal representative will seek to:

Discover the location of the child

Secure the voluntary return of the child if possible, or initiate legal proceedings

DEALING WITH A FOREIGN COURT

With luck, and in most cases, the Central Authority and/or your divorce attorney will be able to locate your child and negotiate their return without involving foreign courts. However, if the matter does go to court, there are factors beyond legislation to bear in mind. Has your child been taken to a jurisdiction where cultural or religious beliefs are different to ours? Some countries have a tendency to grant sole custody to mothers. Others may lean toward awarding care to fathers. If a girl child is promised in marriage at a young age, traditional cultures may defend this practice and resist returning the child to the home country. While you can’t change entrenched beliefs in another jurisdiction, the more you are aware of the issues that may impact your case and the better prepared your legal advisers, the greater your chances of success.

WHAT YOU WILL NEED

In order to begin the proceedings, for international child custody, that will hopefully result in the return of your child, you need:

Completed questionnaire in English

Recent photographs of the child and the parent who abducted them

Certified copies of birth certificates

Proof of parental rights, such as court orders concerning care and contact (custody and access) and/or guardianship

Certified copy of marriage certificate, if relevant

Last known details of the child and the abducting parent’s possible location

Sworn translations in English of all relevant documentation in other languages (e.g. marriage certificates)

WE’LL SUPPORT YOU EVERY STEP OF THE WAY

At Cape Town family lawyers, we know that being separated from your child is traumatic for you and them. We will work tirelessly to effect a speedy reunion with as little distress for all parties as possible.

If you are relocating with the full consent of the other parent, we will help you revise your parenting plan to reflect the changed circumstances and protect the rights and interests of the child and both parents. Excellent legal advice regarding international child custody will ensure the best outcome in either scenario.

Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence.

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.

Jun 28, 2019

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

Jun 12, 2019

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.

Jun 12, 2019

Cannabis: City announces joint venture

Cannabis to be grown for medicinal use in Cape Town

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.