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Oct 8, 2019

Alcohol fuels gender-based violence

When men feel both entitled and inadequate, and when their personalities are brittle and impulsive, then alcohol pushes them over the edge.

Alcohol is a key factor in violence against women. More needs to be done to control the availability of cheap booze in residential areas, says David Harrison of DG Murray Trust in Cape Town.

At SD Law, one aspect of our business is liquor licensing, and we unreservedly support responsible drinking and responsible marketing and promotion of alcohol. We have assisted women clients to escape abusive relationships and have seen first-hand the destructive effect of alcohol and the role it plays in violence against women by men. We share and support the views expressed in this article, written by the CEO of DG Murray Trust in Cape Town, David Harrison.

First published in the Daily Maverick, 02 October 2019

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The suggestion seems almost insensitive, but the fastest way to reduce gender-based violence (GBV) is not in changing men’s attitudes, but in limiting their access to alcohol.

Buried in the president’s recent address to Parliament on GBV was one fairly bland sentence, that “drug and alcohol abuse fuels the gender-based violence pandemic”.

Imagine he had then paused and said: “Now let us all understand what that means. It’s like taking a hose of petrol and spraying it on the fire. It causes an inferno that will keep on exploding until the fuel supply is turned off. Yes, we must get to the source of the fire and help its victims in the meantime, but our most urgent priority is to cut off its fuel supply. And if we succeed in reducing the abuse of alcohol and drugs, we will also dramatically reduce the number of murders and assault, HIV infections and traffic accidents.”

If the president had taken his one-liner to its ultimate conclusion, he would have realised just how inadequate – almost trivial – his proposed response was, namely that “the Department of Social Development has therefore been tasked with increasing the visibility of substance abuse awareness and education and prioritising funding for more treatment facilities”.

Government awareness campaigns are no match for the liquor industry, which keeps finding ways to intensify its own marketing and subverts that of the state. Far more effective is the restriction on alcohol advertising, sponsorship and promotion, which the World Health Organisation promotes as impactful and cost-effective measures to prevent and reduce alcohol harm.

If government is serious about reducing gender-based violence, it needs to stop vacillating about its proposed ban on alcohol advertising. Reducing alcohol harm will not destroy the liquor industry, but ensure that it becomes a commercial sector worth having. At the moment, it is not. The reality is that the societal cost of alcohol abuse, estimated at up to 12% of GDP, far outweighs the economic benefits of the industry.

As for funding more treatment facilities, that’s certainly needed in a country where services for drug and alcohol dependence are inadequate, but it won’t make a dent in levels of gender-based violence, which is more associated with binge-drinking than clinical alcoholism.

Binge-drinking is the strongest proximate risk factor for violence against women and children, and about a quarter of South African drinkers drink in heavy, episodic ways (more than five units at one time). According to Statistics South Africa, either the perpetrator or the victim were reported to have been under the influence of alcohol or drugs in 72% of sexual violence incidents taking place outdoors and 23.3% of incidents taking place at home.

Some argue that alcohol abuse is just the symptom of the same set of social and environmental factors that lead to male aggression, but meta-analyses of the link between alcohol and GBV show small but significant independent effects that can be devastating in the context of social and economic marginalisation. In other words, when men feel both entitled and inadequate, and when their personalities are brittle and impulsive, then alcohol pushes them over the edge.

This means that even as we try to change the cultural and economic factors that drive GBV, we must also tackle the immediate causes that propel the nation beyond the tipping point of unbridled violence and aggression. The global evidence shows that short-term interventions to shift cultures of patriarchy have little effect because gender norms are already fixed by early adolescence. Embedding gender-transformative norms requires a prolonged inter-generational project, aimed at shaping new identities for young children and teenagers. In the next year, we won’t radically transform gender attitudes, but we can intensify the intolerance of GBV and improve the policing and justice systems, which many victims currently experience as indifferent and uncaring.

We can also crimp the flow of fuel to the fire. Pricing is probably the most effective way of reducing binge-drinking, with poorer households and young people most responsive to price changes. In this regard, minimum unit pricing may be easier to implement in the short term than changes in tax and excise, and is likely to have greatest impact in reducing binge drinking. The alcohol industry targets poorer communities with low-cost, high-alcohol content products, with almost half of heavy drinkers consuming alcohol costing less than 50% of the median price.

Strategies to reduce the availability of alcohol in residential areas (through conditional licensing linked to shorter opening hours, reduced density of outlets and monitoring sources of supply of alcohol) have been shown to reduce consumption. At local level, active community mobilisation, such as the monitoring of bar service practices (to combat serving inebriated customers and selling liquor for consumption off licensed premises) are also effective strategies to reduce crime and violence.

GBV is one of the most searing of South Africa’s complex challenges. We tend to become bogged down by omnibus solutions to them all. Certainly their resolution requires multifaceted responses, but it is only too easy for us to lose the wood for the trees and end up doing nothing effectively. In the case of gender-based violence, that wood – alcohol and drug abuse – is the fuel to the fire, just as the president said.

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If you have been affected by any of the issues in this article…

SD Law is a firm of family attorneys with deep experience of helping women escape abusive relationships. We can serve a protection order on a violent partner and help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services and make sure you and your children are safe. At Cape Town Divorce Attorneys, we will handle your case with discretion, empathy and compassion. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We can call you back on a safe number.

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Oct 4, 2019

Why #ImStaying

South Africans in their droves are standing up for what’s great about our country

No one can deny that the last few months have been a tough time to be a South African…violence against women that seems unstoppable, xenophobic attacks, a weak rand, and a government that appears unable to address these and other issues with any authority. Add to that the tragic loss of national icon, Johnny Clegg, and there hasn’t been a lot of good news to shout about.

#WhyImStaying

But we South Africans are a resilient bunch. Determined to rise above the negativity, a small group of individuals committed to showcasing the good in our country set up the Facebook group #ImStaying. The description on the page says, “This group is dedicated to the South African women and men of all races and all religions, who remain loyal to South Africa. This group is to honour all those who still believe that we as a nation can turn things around. To all those who choose to stay and work together to save this beautiful country we call home!” This group has been gaining momentum and now boasts nearly 500 000 members, with more joining by the day. People share their stories of kindness, compassion and commitment using the hashtag #I’mStaying.

We’re staying

At SD Law, we’re staying. We have dedicated our lives and careers to seeking justice for South Africans. Every day we come face to face with the best and worst of society; and we firmly believe that the good in this beautiful land far outweighs the bad. Here’s why #ImStaying.

Our Constitution

South Africa has the most progressive constitution in the world, and one of the youngest. The current constitution, officially the Constitution of the Republic of South Africa, 1996, is actually our fifth, and was drawn up by Parliament in 1994. It was enacted by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. Since 1996, the Constitution has been amended by seventeen amendment acts.

It is founded on the principle of human rights, enshrined in Chapter 2 – the Bill of Rights. The Bill of Rights is a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. You may know what they are, but many people do not, so it’s worth reiterating exactly what our human rights are.

Basic human rights

  • The right to equality:
    No one has the right to discriminate against you based on your race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth among others.
  • Human dignity:
    Everyone has the right to have their dignity respected.
  • Life:
    Everyone has a right to life and nobody, not even the state, has the right to take a life.
  • Freedom and security:
    No one can be put in prison without good reason, be detained without trial, be tortured or punished in a cruel, inhuman or degrading way.
  • Arrested, detained and accused persons:
    Any arrested person has a right to a lawyer. Prisoners must be kept in proper living conditions.
  • Personal privacy:
    No one, not even the government, has the right to search your house or property or seize your possessions without following the correct legal channels.
  • Freedom of expression:
    Everyone has the freedom to say, write or print what they want, so long as exercising this right does not violate anyone else’s right or break the law in any way.
  • Freedom of association:
    Everyone has the right to associate with a trade union, a political party, or any other club or association.
  • Political rights:
    Every citizen has the right to form a political party and to participate in the activities of a political party. Every citizen has the right to free, fair and regular elections and every adult citizen has the right ­to vote in elections for any political party, and to do so in secret.
  • Education:
    Everyone has the right ­to a basic education and to further education.
  • Healthcare, food, water and social services:
    Everyone has the right to access healthcare services, including reproductive healthcare; sufficient food and water; and social security.
  • Slavery, servitude and forced labour:
    Everyone has the right to choose who to work for and the kind of work they do, and must be paid for their work.
  • Citizenship:
    No-one’s South African citizenship can ever be taken away.
  • Housing:
    Everyone has the right to adequate housing. The government cannot evict you from your home if you own it.
  • Children:
    All children have the right to parental care, shelter, and food. Children may not be neglected or abused or forced to work.

Source: South African Human Rights Commission

It’s not difficult to understand the basis for and importance of these fundamental human rights. Every single one of them was abused under the apartheid regime. But not every country with a turbulent past has been able to take such a decisive stand against human rights abuse. Our Constitution is admired the world over.

Respect for LGBTQI rights

There are only 28 countries that allow same-sex marriage, out of a total of 195 countries in the world recognised by the UN. South Africa was the fifth country to legalise same-sex marriage, in 2006. Furthermore, this legislation was a direct result of a constitutional challenge to the earlier marriage laws on the basis of human rights – the right to equality includes the right to marry.

South Africa offers asylum to people from other countries who are persecuted for their sexual orientation. Unfortunately, cultural norms have not kept pace with legislation, and members of the LGBTQI community do experience discrimination and abuse, both verbal and physical. At SD Law we condemn this and continue to fight for equality and freedom of expression, including sexuality and sexual preference. The protection of the law may not put an end to deep-seated prejudice, but it does mean there are penalties for harassment and intimidation that do not exist in many neighbouring countries, where persecution of same-sex relationships is carried out by the state.

A vibrant civil society

Perhaps it is because of our history of oppression and injustice, but civil society in South Africa is one of the most active in the world. We are proud of organisations like the Treatment Action Campaign, Section 27, the Legal Resources Centre, the Black Sash, Sonke Gender Justice, SWEAT, Open Society Foundation for South Africa, Right2Know, and many others – too many to name – that play a vital role in our democracy. These organisations function as overseers of democratic institutions; they monitor human rights and give citizens, especially vulnerable and marginalised populations, the tools to defend their rights. Some of SA’s finest activists have found their voice through – or indeed founded – these important institutions.

A beautiful country

Lastly, who can deny that South Africa is one of the most beautiful countries on earth! From the Drakensburg to the Wild Coast to the Garden Route to Kruger National Park to the Karoo to Table Mountain, and everything in between, we think South Africa has it all. #ImStaying

Contact us today

SD Law is a firm of Cape Town and Johannesburg attorneys with a deep commitment to constitutional law. If you have experienced discrimination, either at work or in your community, or you feel your rights have been infringed in any way, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We will protect your human rights.

 

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Oct 1, 2019

Appointment of a curator

A practical guide to selecting and appointing a Curator Bonis

Appointing a Curator Bonis. Cape Town Lawyer

The ability to make decisions can be impaired because of diminished mental capacity, resulting from a variety of things, requiring the appointment of a curator. Sometimes the impairment is permanent, such as intellectual disability, brain injury or disease, dementia (Alzheimer’s) or incapacity related to ageing. In other cases the damage can be temporary, such as from serious illness, a stroke where the person recovers function, or mental illness. Mental disability and ageing are the most frequent causes of an inability to make effective decisions. Impairment can come on suddenly, for example following an accident or stroke (in the immediate aftermath), or it can be gradual and often dismissed, as in the case of encroaching dementia. Sometimes it takes a significant event for family members to fully accept that their loved one is slowly losing their grip on reality.

The general rule is that majors (those age 18 and above) are presumed mentally and legally competent to manage their own affairs until it is proved to the contrary. But if you have elderly parents, or if you suffer from a degenerative illness that may affect your decision making in future, you may want to think about how you will administer your parents’ affairs…or who will administer yours…should it become necessary.

Appointing a Curator Bonis

There are two ways in which you can appoint someone, called a Curator Bonis, to administer the estate of an individual who is incapable of managing their affairs. We’ll look at each procedure in turn.

1. Common law procedure – application to the High Court

The High Court may declare a person incapable of managing their own affairs, and may appoint a Curator to manage their affairs and/or property. The procedure for this is set out in Rule 57 of the Uniform Rules of the High Court.

Anyone who wants to apply to the court for such an order must first apply for the appointment of a Curator Ad Litem. This application is by way of notice of motion and must contain:

  • Full particulars of the locus standi (the right to make the application) of the applicant
  • Jurisdiction of the court
  • The age and sex of the person considered incapable, full particulars of their means, and information as to their general state of physical health
  • The relationship between this person and the applicant, and the duration and intimacy of their association (if any)
  • The facts and circumstances provided as evidence that the person is of unsound mind and incapable of managing their affairs
  • The name, occupation and address of the respective persons suggested for appointment by the court as Curator Ad Litem, and subsequently as Curator Bonis of the person’s affairs or property, and a statement that these people have been approached and have indicated that, if appointed, they would be able and willing to act in these respective capacities

The application should be supported by:

  • An affidavit by someone who knows the person well, containing facts and information about the person’s medical condition. The affidavit must also set out the relationship between the deponent (the referee) and the person, and the deponent’s interest in the matter
  • Two recent medical reports by medical practitioners, one of whom should (where practicable) be a psychiatrist, who have conducted recent examinations of the person to determine their medical condition. The reports must contain the facts about the condition and opinions about the nature, extent and likely duration of any mental disorder or defect observed. They must comment on the person’s inability to manage their affairs. The medical practitioners should not be related to the person or have any interest in the matter

The court will then appoint a Curator Ad Litem (usually an advocate of that court) to investigate the matter fully and report to the court and the Master [Rule 57(4) & (5)]. The Curator Ad Litem will interview the person and make any further enquiries necessary. They will then prepare and file a report with the Registrar of the court.

The Master also compiles a report after receiving the Curator Ad Litem’s report, making recommendations to the court regarding the merits of the application, the suitability of the nominated curator, their powers and security [Rule 57(7)]. Upon consideration of the application, the reports from the Curator Ad Litem and the Master, and any other relevant information, the court will issue the order if necessary [Rule 57(10)].

When the High Court appoints a curator to administer someone’s estate, they may not act on that appointment until formally authorised by the Master of the High Court. Section 71 of the Administration of Estates Act 66 of 1965 provides that no one who has been nominated, appointed or assumed as curator may administer any property belonging to the person under care until authorisation is received via letters of curatorship.

2. The procedure for the appointment of an administrator as set out in the Mental Health Care Act, 17 of 2002

In terms of the Mental Health Care Act, the Master of the High Court may, after considering and processing the required application, appoint an administrator to manage the property of a person who has been diagnosed as mentally ill or a person with severe or profound intellectual disability.

While the common law application is appropriate for any situation where the person is incapable of managing their own affairs, this application is only relevant in the case of mental illness or severe or profound disability. The diagnosis will have to be confirmed by medical certificates or reports by a mental health care practitioner duly authorised to make such a diagnosis.

Because no High Court application is required for the appointment of an administrator, the procedure is far less costly than the common law appointment of a Curator Bonis. The application can be lodged directly with the Master of the High Court in the relevant jurisdiction (where the person needing the administrator resides). The applicant does not need to use an attorney, although a good family lawyer’s assistance in lodging the application with the Master can make the task much easier.

The application procedure for the appointment of a curator in terms of the Mental Health Care Act is set out in section 60 of the Act and provides as follows:

  • Any person over the age of 18 may apply to a Master of a High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability.
  • The application must be made in writing, under oath or solemn affirmation and must:
    1. Set out the relationship of the applicant to that person
    2. State the reason why the spouse or next of kin did not make the application, if the applicant is not a spouse or next of kin of that person
    3. Describe the steps taken to establish the whereabouts of the next of kin before making the application, if they are not available to make the application
    4. Include all available mental health-related medical certificates or reports relevant to the mental health status of that person and to their incapacity to manage their property
    5. Set out the grounds on which the applicant believes the person is incapable of managing their property
    6. State that, within seven days immediately before submitting the application, the applicant had seen the person
    7. State the particulars of the person and their estimated property value and annual income
    8. Give the particulars and contact details of anyone who may provide further information relating to the mental status of the person
  • The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.

Powers of a curator

The powers and responsibilities of a curator or administrator are primarily to administer the estate of the person who is incapable of managing their own affairs, including the following:

  • 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.

These powers are usually subject to the prior consent and approval of the Master.

Contact a specialist family lawyer

While an attorney may not be explicitly required under the second procedure above, in both cases a family lawyer experienced in estate planning and management will make a complex and difficult situation easier to understand and manage. There are multiple steps in the process of appointing a curator, and it is important to ensure nothing is left out. There may be other considerations, too, such as a will and life insurance provisions. Don’t put the financial wellbeing of your loved one at risk. Contact family lawyer Cape Town for a consultation. Speak to Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment.

 

Use our handy checklist to make sure you have everything you need.

Read our blog post on the different types of curatorships and administrators.

 

 

 

 

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Sep 29, 2019

Unpaid municipal bills – what’s a landlord to do?

The sting in the tail when a tenant moves out is often a legacy of unpaid bills

Your tenants have moved out, either willingly or through the eviction process. Then you get hit with a large unpaid rates bill by the local municipality. What do you do?

Utility bills can be a sore point for landrlds and tenants. They don't have to be.

If it comes to this, the answer is very little. It’s more important to avoid this scenario altogether. We’ll look at what to do if this happens to you, and in Utility bills – who’s responsible and how to manage them we show you how to prevent it happening again.

Whose bill is it anyway?

Ultimately, the payment of utilities and taxes (often combined in one “rates” bill by the municipality) is the responsibility of the property owner. You may agree that these will be paid by the tenant, but if the tenant reneges on this obligation, the municipality will be within its rights to chase you as owner for payment.

The account may be registered in the tenant’s name, and you may have ensured a watertight wording in your lease agreement to this effect. But don’t take too much comfort from this. There have been many cases of tenants vacating premises and leaving accounts left unpaid. Property owners would deny responsibility as the account was in the tenant’s name. Municipalities, understandably, ran out of patience and many now do not allow the account to be in any name other than the registered owner of the property. If the account was registered prior to this decision, it may still be in the tenant’s name, but unfortunately that does not absolve you of the liability for the account.

Recovering unpaid bills from a tenant

Your first port of call is of course the deposit. For this reason it is a good idea not to be too hasty in returning the deposit after the tenant moves out. They will of course pressure you for prompt payment, particularly if they have to pay a deposit on a new property. But you are within your rights to ensure there are no outstanding unpaid bills against the property as well as checking the inventory and inspecting the property for damage. If you have taken two months’ rent as a deposit, hopefully you will have enough to cover what is owing. However, this may not be the case if the rates have gone unpaid for some time or if there are cleaning and repair bills to cover too. 

If the deposit in insufficient to offset the debt, in the first instance try to contact the tenant and ask for settlement. Be reasonable and offer to accept payment by instalments. An acknowledgment of debt signed by both parties is a good idea. If the tenant does not offer or is unable to pay the full amount upfront, you must pay the bill yourself. Failure to do so may result in the property’s utilities being cut off, which will only give you a bigger headache if you have new tenants or are trying to re-let the property. Recovering the debt is your problem, not the municipality’s.

Recovery via Small Claims Court

It is always better to settle amicably and out of court, but if that fails, and the debt is less than R20 000, you can pursue the debtor through the Small Claims Court. You do not need an attorney for this action and indeed are not permitted to be represented by one. Find your nearest Small Claims Court and contact the Clerk of the Court, who will instruct you in the procedure.

Help from the services of an expert lawyer

The Small Claims Court has limited powers. You may not be successful in recovering your unpaid municipal bills, or the amount may exceed R20 000. If you choose to continue to pursue your tenant for the money, you will need to sue them, using the services of a suitable law firm experienced in litigation. At this stage you will have to decide whether it is worth the hassle. Sometimes the prudent course of action is to cut one’s losses and move on. This is a personal decision, and we at SDLAW will support you if you choose to litigate.  

Prevention is better than cure

If you are reading this because you have been stung by a tenant, it is of little consolation to know that the situation could have been prevented. But presuming you will continue to lease your property and manage tenants, you will want to take the necessary steps in future to ensure you are not landed with an outgoing tenant’s rates bill again. Read Utility bills – who’s responsible and how to manage them to find out how to avoid this sting in the tail.

Seek the guidance of an expert eviction lawyer

If you need to pursue a tenant who has left you with unpaid municipal bills, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Eviction lawyers Johannesburg and Cape Town are experts in rental property and will help you choose the most appropriate course of action for your circumstances. We will also advise you on lease agreements and tenant screening to ensure your tenancies run smoothly in future.

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Sep 27, 2019

Utility bills – who’s responsible and how to manage them

The end of a tenancy is not the time to discover your tenant has not been paying the municipal bills or “rates” – property taxes and utility bills like electricity, water and sewerage, etc. At that stage you are faced with the difficult task of trying to recover the money. It is far better to ensure due process is in place from the outset of the occupancy to cover all bills that will accrue to the property. This is best done via a written lease agreement, which sets out the terms and conditions of the rental and can be as detailed as you like, clearly stating the responsibilities of tenant and landlord for every cost. For example, you may wish to differentiate between utilities like water and electricity and “add-ons” like WiFi and garden maintenance. 

Rental Housing Amendment Act

Remember that when the Rental Housing Amendment Act comes into force it will be a requirement to have a written lease. If you don’t have one now, it’s time to draw one up. You will only have six months from when the Act becomes law to comply. This is your chance to incorporate all these details into your rental agreement with your tenant. 

Prepaid electricity meters

One of the simplest ways to avoid disputes over electricity bills is to install a a prepaid electricity meter. This is becoming more and more common in rental properties. The landlord has the comfort of knowing the electricity is paid for, and the tenant has control over consumption and can make economies if necessary, an option not available if the rent is “all-in”, i.e. the landlord pays the bills and allows for the costs in the rent charged (see below). Many municipalities no longer allow electricity accounts to be in any name other than the registered property owner, so a prepaid meter is a good compromise. The landlord remains the responsible person, and the tenant has no choice but to pay for use. If the account is not in the owner’s name, perhaps because the tenant has been in situ for a long time, it is a good idea to have the account transferred, as the owner will be held liable regardless.

Other utility bills

If the municipal account is still in the tenant’s name and the tenant is responsible for payment, the landlord can ask the tenant for proof of payment each month. If this is not forthcoming or there is any suspicion of arrears, you as registered owner are entitled to ask the municipality for a copy of the account. If you exercise diligence in ensuring these accounts are up to date, you will avoid any nasty shocks at the end of the rental period. 

“All-in” rent

An option some landlords prefer is to take on the liability for all bills (sometimes with some exceptions as noted above). The rent is then adjusted to accommodate this. This is known as an “all-in rent”. There are pros and cons to this arrangement for both parties. For the tenant, it can be helpful, certainly in terms of budgeting, to have one monthly fee to pay. The cost of living in the property won’t vary summer to winter with changing consumption patterns. For those on a tight budget this can be a real boon. The downside, from the tenant’s perspective, is that there is no financial benefit to be gained from minimising consumption. (And this may lead to waste, a downside for the landlord.) The tenant also does not have any utility bills in their name, which can be a problem when address verification is needed for credit or other applications. However, the lease will usually suffice.

For the landlord, there are no concerns about unpaid bills. Everything is under their control. However, the adjusted rent is based on past average consumption. If the tenant is wasteful in their use of water, gas or electricity, the owner can be faced with a bill in excess of what has been included in the rent. The solution to this is a clause in the lease agreement stating that the landlord reserves the right to make a surcharge should consumption exceed reasonable amounts (“reasonable” can be difficult to define so the wording may refer to a figure or percentage). The landlord will also bear the burden of rate hikes, as they cannot increase the rent until the lease is due for renewal.

The alternative – charging utility bills to the tenant as they arise

A more transparent, albeit more labour-intensive, solution is to charge the utilities to the tenant as they arise. This means the landlord will always carry one month’s obligation for these costs and may still be left with unpaid bills at the end of the tenancy, but any liability will be limited and should be covered by the deposit. If this process is adopted, property owners should remember that tenants have a right to be treated fairly and equitably. It is good practice to:

  • Provide the tenant with copies of bills and meter readings
  • Give the tenant a formal invoice for their share of the costs as set out in the lease agreement
  • Avoid charging the tenant an estimate if the meter reading has not been done for the period. Many Rental Housing Tribunals do not support this practice. It is usually possible to email a photo of the meter reading to the municipality and request an accurate bill
  • Provide the tenant with a monthly statement and keep a record of all communications pertaining to utilities (this is particularly important for transparency where the rent is all-in)

It’s important to note that a property owner may not charge property taxes to the tenant. The cost can be factored into the rent, but may not be passed on to the tenant in a literal sense. 

Whether you opt for an all-in rent or charging the tenant on a PAYG basis, this can be a workable solution, particularly for a property owner who has been saddled with unpaid bills in the past. At the end of the lease, it is reasonable to deduct any amounts owing from the deposit, and this should not trigger a dispute, particularly if clearly stated in the lease.

Landlords may not…

Finally, if you hold control over power and water, it may be tempting to use this as leverage if your tenant fails to pay rent or breaches the lease conditions in any other way. Don’t do this! It is unlawful to disconnect your tenant’s electricity in the event of non-payment of rent. Disconnection without a court order is illegal. If your tenant is in arrears with rent, you must follow the correct eviction procedure as set out in the Rental Housing Act and Consumer Protection Act (CPA) and give them an opportunity to rectify the breach. 

Seek the guidance of an expert eviction lawyer

If you need help to draw up a lease agreement, screen tenants or negotiate utility bill arrangements with your tenant, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. Eviction lawyers Johannesburg and Cape Town are experts in rental property and will help you select the best option for your circumstances. We will ensure your tenancies run smoothly, with no nasty shocks waiting in store for you.

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Sep 20, 2019

Will it be bail or gaol for convicted killer Jason Rodhe?

Why bail is not always granted

In November 2018, Jason Rohde was convicted of killing his wife Susan and defeating or obstructing the course of justice by covering up her murder to make it look like a suicide. He is currently serving a 20-year sentence.

Upholding the rule of law. When not to release someone on bail.

Rohde has now asked the courts to grant bail so he can manage his business interests pending the outcome of his application to have his conviction and sentence overturned in the Supreme Court of Appeal (SCA). But the Western Cape High Court has denied bail. Granting bail would “offend the rule of law and make a mockery of the criminal justice system,” Judge Gayaat Salie-Hlophe said at the hearing. The court did not believe that the facts presented by Rohde’s legal counsel were “sufficiently compelling to justify his release.”

Being presumed innocent is not enough

Section 321 of The Criminal Procedure Act and legal precedent guide the decision on whether or not to grant bail. An accused may be released on bail while awaiting trial to carry on with his life and earn an income if there is a possibility that he may be acquitted or given a suspended sentence or probation. In this scenario the accused is still presumed innocent.

In the case of Essop v the State, for example, the court ruled that the presumption of innocence no longer applies if someone who has already been convicted and sentenced for a crime later applies for bail pending the finalisation of his appeal against his sentence.

In Rohde’s case, he too had already been convicted of murder and no longer enjoys the presumption of innocence. So, although he has been granted leave to appeal in the SCA, this does not in any way invalidate the fact that he has been found guilty and does not entitle the applicant bail pending the hearing of the appeal. (See R v Mthembu 1961 (3) SA 468.)

Being presumed innocent is only one factor considered in determining whether to grant or deny bail.  In the Essop matter, bail was granted pending the appeal, subject to strict conditions and under very different circumstances: The accused had pleaded guilty, the court felt that the sentencing magistrate had handed down a sentence far too severe, the appeal court was likely to amend the sentence, and Essop was not regarded as a flight risk.

Does it serve the interests of justice?

The Court must also consider whether together all the facts constitute exceptional circumstances that would justify Rohde being released on bail (R v Milne & Erleigh (4) 1950 (4) SA 601 (W) at page 603 and S v Bruintjies 2003 (2) SACR 575 (SCA) para 6). In S v Scott-Crossley 2007 (2) SACR 470 (SCA) the court held that the likelihood of success alone is not sufficient. Additionally, Section 60(4) and (5) state that the interests of justice do not permit an accused being released on bail during trial and preceding conviction. On this basis, the court ruled that releasing Rohde would not serve the interests of justice and, in any event, he had already been convicted.

Under what circumstances is bail denied?

Numerous factors come into play in the court’s decision to deny bail:

  • The severity of the crime.
  • If the accused is a flight risk (Rhode has Australian and United Kingdom passports as well as an overseas bank account).
  • To protect the welfare of society if the accused is a repeat offender.
  • If there are signs of mental instability or violence and the defendant poses a threat to themselves or others.
  • If there is a possibility that the accused will try to influence or intimidate witnesses or destroy evidence.

Furthermore, South Africa has the worst levels of gender-based violence (GBV) in the world and the highest incidence of rape per capita. The latest crime statistics reveal that seven women and three children are killed in this country every single day.

The recent spate of gender-based violence in this country is alarming and the judiciary must be seen to be upholding the rights of women. This is further reason to deny bail for Rohde.

The bottom line

A decision to release Rohde on bail would undermine the rule of law and make a mockery of the criminal justice system. The reasons to keep him behind bars are far more compelling than any justification to grant bail to someone convicted of such a dreadful crime.

We’re here to help

Cape Town Attorneys, SD Law & Associates Inc., are criminal attorneys and bail lawyers.

We will ensure that your constitutional right to a fair trial is upheld and we always consider alternative dispute resolution/mediation instead of gaol time. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for any advice about criminal law.

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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.

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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.

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