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Month: February 2018

MHI GOES RED

MHI GOES RED

February is the month of LOVE and everyone wore shades of red to celebrate.

We were spoiled with delicious treats and fun. We even held a lucky draw to establish how many marshmallows could fit in a beautiful glass container.

Kestrel was the winner that guessed spot on!

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Clarina from MES came to visit and presented Stefanus with a living gift. A mint plant that was grown by the GROW clients of MES. They have established herb and vegetable gardens and teaches that through work comes self-respect.

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May we teach others the same values.

 

AM I STILL LIABLE FOR MY SPOUSE’S DEBT AFTER DIVORCE?

AM I STILL LIABLE FOR MY SPOUSE’S DEBT AFTER DIVORCE?

A husband and wife buy a house together. Their marriage takes a tumble, along with their ­finances, and they have to sell their home and are left with an outstanding mortgage bond. They subsequently got divorced. The couple is concerned about what will happen to the debts and who will be ­responsible for paying them.

Who pays what after divorce?

If the couple was married in ­community of property, the debt on the property is a joint debt. They will be jointly and severally liable. This means that each partner is not just liable for half the debt now that they are divorced, in fact the bank can seek the full amount from either of them. The one spouse who is held liable by the bank would then have a claim of 50% of the debt against the other, but it would be his or her responsibility to collect that debt (not the bank’s). Alternatively, the bank may agree to accept 50% from one person and release them from the ­liability, but it does not have to.

Sometimes, the divorce settlement makes a special mention of the mortgage. But if there is no clause in the divorce, the joint liability principle applies. After a divorce, the husband and wife should present their bank with a copy of the divorce settlement. This will remove any uncertainty about ownership and liability for bond payments.

Getting divorced while under debt review

If you get divorced while you are under debt review and you have the debt review court order in place, then this will need to be rescinded and for new debt counselling applications to be started, as in order to follow on with the debt counselling process you will need to reapply, but will now need to be seen as two single applications. A new budget and new proposals will also have to be drawn up.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

“Debt And Divorce”. News24. N.p., 2017. Web. 12 June 2017.

“Debt Review After A Divorce Settlement – Debt Review”. Debtbusters. N.p., 2017. Web. 13 June 2017.

THE 10 STEPS WHEN TAKING A DISPUTE TO THE CCMA

THE 10 STEPS WHEN TAKING A DISPUTE TO THE CCMA

If you have a dispute with your employer, you may want to ask the Commission for Conciliation, Mediation and Arbitration (“CCMA”) to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. Furthermore, you do not need the other party’s consent before taking a matter to the CCMA.

Steps for disputes at the CCMA

According to the CCMA, the steps involved in resolving a dispute include:

Step 1: In the case of an unfair dismissal dispute, you have only 30 days from the date on which the dispute arose to open a case, if the case is an unfair labour practice, you have only 90 days and, with discrimination cases, you have six months.

Step 2: If you have decided to lodge a dispute, you need to complete a CCMA case referral form (also known as LRA Form 7.11.).

Step 3: Once you have completed the form, you need to ensure that a copy is delivered to the other party and you must be able to prove that a copy was sent.

Step 4: You do not have to bring the referral form to the CCMA in person. You may also fax the form or post it. Make sure that a copy of the proof that the form had been served on the other party is also enclosed.

Step 5: The CCMA will inform both parties as to the date, time and venue of the first hearing.

Step 6: Usually the first meeting is called conciliation. Only the parties, trade union or employers’ organisation representatives (if a party to the dispute is a member) and the CCMA commissioner will attend.

Step 7: If no agreement is reached, the commissioner will issue a certificate to that effect. Depending on the nature of the dispute, the case may be referred to the CCMA for arbitration or the Labour Court as the next step.

Step 8: In order to have an arbitration hearing, you have to complete a request for arbitration form, (also known as LRA Form 7.13.). A copy must be served on the other party (same as in step 3).

Step 9: Arbitration is a more formal process and evidence, including witnesses and documents, may be necessary to prove your case. Parties may cross-examine each other and legal representation is allowed. The commissioner will make a final and binding decision, called an arbitration award, within 14 days.

Step 10: If a party does not comply with the arbitration award, it may be made an order of the Labour Court.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

The Commission for Conciliation, Mediation and Arbitration | CCMA|

http://www.ccma.org.za/Advice/Referring-a-Dispute

GETTING RID OF NON-PAYING TENANTS: FIRST MAKE SURE THE PAPERWORK IS IN ORDER!

GETTING RID OF NON-PAYING TENANTS: FIRST MAKE SURE THE PAPERWORK IS IN ORDER!

Anyone who has ever been faced with having to evict tenants who are not paying their rent knows that it can be a long and frustrating (not to mention expensive!) process.

The process can prove to be even more frustrating if the steps leading up to and including cancellation of the lease agreement (which is a prerequisite to any eviction application being brought) have not been dealt with properly and in terms of the lease agreement and applicable legislation.

Below is an outline of the steps landlords should follow to ensure that, if the time comes to evict a non-paying tenant, the process is not unduly delayed as a result of incomplete paperwork.

STEP ONE:

Make sure your residential lease agreement complies with the applicable legislation

It is important to note that all residential lease agreements are governed by the Rental Housing Act 50 of 1999 (“the RHA”). The Act is very succinct and familiarising oneself with its contents is a must for landlords and tenants alike. Some fixed term residential lease agreements are also subject to section 14 of Consumer Protection Act 68 of 2008 (“the CPA”). In terms of section 14 of the CPA:

  • A landlord may cancel the agreement 20 business days after giving written notice to the tenant of a material failure by the tenant to comply with the lease agreement (e.g. failure to pay rental amounts when due), unless the tenant has rectified the failure within that time. In other words: Should your tenant be in breach of the lease (which lease is for a fixed term and provided the CPA applies), you may only cancel the lease after having given the tenant 20 business days written notice of such breach and the tenant having failed to rectify the breach within such period.

What is therefore implied is that (provided the CPA applies to the lease agreement) all clauses in lease agreements which provide for immediate cancellation of the lease in the event of the tenant failing to pay the rental amount on the due date, or provide for a period of less than 20 business days within which to remedy the breach, are unenforceable.

Landlords should therefore ensure that their residential lease agreements are drawn up by an attorney specialising therein and that once the lease agreement has been properly signed and dated by all parties, to keep it in a safe place for future use.

STEP TWO:

Act timeously when a breach occurs

Should your tenant breach a material term of the lease agreement, for example fail to pay the rental amount when due, it is important to act swiftly and in terms of the provisions of the lease agreement.

For example: Should the rental amount be payable on the first of the month and you are not supplied with a proof of payment by your tenant, or the funds do not reflect in your account by said date, it is important to immediately notify the tenant in writing of his or her breach (“the breach notice”) and request that the breach be remedied within the time period as provided for in the lease agreement. Keep in mind that, should section 14 of the CPA apply to the lease, the tenant must be given at least 20 business days written notice within which to remedy the breach, regardless of what the lease agreement provides for.

Landlords should also ensure that this breach notice is delivered to the tenant using the method provided for in the lease agreement. Whether the lease agreement provides for delivery of notices by hand, registered post, fax and/or email, ensure that this is done properly and that the correct details are used as provided by the tenant. Keep proper record of delivery of such notices.

STEP THREE:

Cancel the lease when the tenant fails to remedy their breach

Should your tenant fail to remedy his or her breach by making payment of the arrear rental amount within the time period provided for in the breach notice (as outlined in step two above), you as landlord are entitled to cancel the lease agreement.

It is advisable to deliver a notice of cancellation of the lease agreement to the tenant, informing him or her of the cancellation and providing a date by which the property must be vacated, failing which a formal eviction application will be brought. Ensure that this cancellation notice is also properly delivered to the tenant as provided for in step two above and keep proper record of delivery thereof.

STEP FOUR:

Bring an eviction application should the tenants fail to vacate the property

In some instances, tenants will disregard the landlord’s notice of cancellation and/or request to vacate and remain in occupation of the property.

As the Constitution of the Republic of South Africa provides that no one may be evicted from their home without an order of court, made after considering all the relevant circumstances, the only recourse a landlord has in such an instance is to approach the courts for assistance by way of an application for eviction of the former tenants, now “unlawful occupiers” as defined in the Prevention Of Illegal Eviction From And Unlawful Occupation Of Land Act 19 Of 1998 (“PIE”).

PIE regulates the eviction of “unlawful occupiers” from land which is used for residential purposes and the provisions thereof must therefore be followed whenever an order for the eviction of persons from a property used as a dwelling is sought.

What should be clear, is that before such eviction proceedings can be brought, the person(s) against whom the eviction order is being sought must first be rendered “unlawful occupiers”. An “unlawful occupier” within the ambit of PIE means “a person who occupies land without the express or tacit consent of the owner or person in charge.”

Before a tenant can be rendered an “unlawful occupier” and therefore before any eviction application can be brought in terms of PIE, the consent of the owner must be withdrawn, in other words, the lease agreement, in terms of which the tenant is granted occupation of the property, must be validly cancelled.

It is therefore of utmost importance that the lease agreement is cancelled timeously and in terms of the lease agreement and applicable legislation. Upon instructing an attorney to act on your behalf in any eviction application, he or she will first and foremost have to determine whether the above was in fact done. Should it transpire that, for example, your breach notice was defective, or not properly delivered, it will be necessary to re-do these steps, thereby losing valuable time and incurring unnecessary costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)