Know the Grounds for Divorce and Child Maintenance in South Africa

Each year, more and more dreams of marital bliss are shattered as couple’s throw in the towel. In fact, the latest statistics released by Statistics SA show that fewer lovebirds are tying the knot and that an increasing number of marriages in South Africa do not last over 10 years. Whether it’s because of finances, adultery, abuse, addiction, social media, or the demands of our ever-changing society – divorce is no walk in the park.

While the divorce procedure in South Africa is pretty much straightforward, separation can be stressful, time-consuming, emotionally taxing and, not to mention expensive. Regardless of the undercurrent that has arisen in your marriage, your divorce may be your first encounter with the legal system. Understandably, the prospect of dealing with an attorney, judge and all the legal jargon can be intimidating. To minimise any oversights, we’ve put together a basic guide to understanding the Divorce Act.

We’ve gone from the ‘Fault’ System to the ‘No Fault’ System

Prior to the South African Divorce Act, 70 of 1979, divorce in South Africa was not as widespread as it is today. Formerly, there were four grounds for getting a divorce: adultery, malicious desertion, incurable mental illness and imprisonment for at least 5 years. They based grounds for divorce on ‘the fault’ system, which placed all the blame on one spouse, leaving the other spouse innocent. After years of discontent, they amended it a ‘no fault’ system. The ‘no fault’ system allows a marriage to be dissolved on the following three grounds only: irretrievable breakdown of a marriage, mental illness or continuous unconsciousness.

Maintenance of children is foremost

In South African divorce law, the court considers the well-being of children foremost. If there are children, maintenance must be decided on. Section 7 (2) of the South African Divorce Act deals with the payment of maintenance, and if the parents cannot find common ground about who will take care of the children, the court will decide the children’s best interest.

So what can a working parent expect to pay each month? Subject to the parent’s income and monthly expenditures – if you are paying for one child, you will pay up to 12% of your gross weekly income. If you are paying for two children, you will pay up to 16% of your gross weekly income, and if you are paying for three children or more, you will pay up to 19% of your gross weekly income. The duty of maintenance payment will only end when the child turns 18.

If you’re looking for a proficient and compassionate divorce attorney in Pretoria who only specialises in divorce law and family matters, then you need to partner with Riëtte Oosthuizen Attorneys. However, if you’re interested in learning more about the Divorce Act in South Africa, visit our blog. You’ll find everything you need to ensure a speedy and amicable divorce.

Is Your Ship Sinking? When to Consider Liquidation?

Considering liquidation, wondering if it’s the right process for your business? It’s no secret that business is tough in South Africa, and while it’s the aim of every entrepreneur to succeed in an over-crowded marketplace such as ours, things don’t always go according to plan.

Today, liquidation is common in South Africa, so much so that the latest liquidation statistics released by Stats SA paint a very bleak picture. Although liquidation has decreased by 10, 8% since 2015, this doesn’t mean much for all the other entrepreneurs sailing stormy seas. Today, there are hundreds of businesses struggling to survive, which is exactly why you’re reading this article. You want to know whether you should because you’re in the same boat.

So how do you know if liquidation is for you?

The New South African Companies Act of 2008 compels all insolvent businesses to consider the process of voluntary liquidation rather than wait for a court order. The Act also stipulates that if a company conducts business while insolvent, then the directors will be liable for all debt incurred. So how do you know if liquidation is for you? If you’re a company or a close corporation that owes between R50 000 and R80 000 and you’re able to pay back your debts over time, then the best solution would be to sequestrate. But if you’re a company that owes way over R80 000, your liabilities exceed your assets, and you’re unable to pay back your debts, then the best solution would be to liquidate.

What you need to know about the liquidation process

The umbrella term for insolvency, liquidation is a process by which a company’s existence is brought to an end. Basically, there are two types of liquidations in South Africa: voluntary and compulsory. Whereas compulsory liquidation (forced liquidation) occurs because of a court order, voluntary liquidation occurs when the company cuts their losses and cease all operations. Regardless of the fact that liquidation is not an easy decision to make, what’s even worse is having the court make it for you, or getting deeper into debt and ending up with a criminal record.

Liquidation can be tough, which is why it’s always best to partner with a private Insolvency Company that can assist you through the process step-by-step. A legal process where a business and its affairs are placed under the control of a liquidator, voluntary liquidation is a fairly straightforward process that involves realising the company’s assets, cessation or sale of its operations, and distributing the proceeds among creditors and shareholders.

While no business wants to liquidate, one of the greatest advantages of liquidation is that once the process is complete and the company ceases to exist, the director will be free to strategise and implement a new business plan once again.

Flirting with Financial Ruin? Reclaim Financial Control With Debt Review!

Having sleepless nights, wondering how you will get yourself out of debt? With the current economy and the regular increase of interest rates, food, electricity, school fees and fuel, millions of South African citizens are teetering on the edge of bankruptcy. Not only are many living from paycheck to paycheck, but over 50% contribute over 76% of their monthly income on their debt repayments alone.

South Africa is in a debt crisis of epic proportion

A four-letter word that not only sends shivers down a grown man’s spine – debt has repercussions far beyond a hit to one’s sense of security and self-esteem. When you’re deep in debt, it’s not only hard to see your way out, but it’s also hard to imagine that things will ever get better. But the good news is they will, and that is exactly why we exist.

We are the ultimate one-stop shop for every type of debt dilemma

Accredited as one of the leading debt consulting companies in the Southern Hemisphere, we offer a lifeline to everyday over-indebted consumers who have lost control of their finances and who are being harassed and threatened with repossession, foreclosure and garnishee orders. If you owe a lot of money and see no way out without losing everything, you will be happy to know that we have enabled well over 20,000 South Africans to pay their debts and clear their names without having to sell their assets or cash in their life insurance policies.

How debt review works

Introduced in 2007 by the National Credit Act (NCA), debt review is a legal, healthy practice where the over-indebted request to have their debt restructured through the help of a registered debt counsellor under the National Credit Act. A safety net for consumers who cannot keep to their monthly debt repayments, the aim of debt review is to make funds available to pay debts back, while still allowing consumers to have enough income to cover all their basic living expenses, such as food, car, petrol, school fees, bond or rent.

Legal action will cease and judgements will fall away

While there are many benefits of debt review, possibly the greatest benefit of all is that no legal action will be taken against you. In fact, as soon as you begin the process, you will be under the protection of the National Credit Act, which means they will permit your creditors from contacting you. All those telephone calls and notices that threaten judgements, garnishee orders, blacklisting, sequestration and foreclosure will fall away. And as soon as you’ve paid your creditors, you can start all over again with a perfect credit record. Sound good?

We can reduce your monthly payments and interest rates

Our debt counsellors will begin the debt review process by assessing your credit report and analysing your finances to see where your debt problems lie. Once we’re able to release some disposable income, we will negotiate to reduce your monthly repayments and your interest rates by up to100%. Our debt review counsellors will also help you identify your bad spending behaviours so you don’t fall back into irresponsible habits.

Call us—your financial freedom is only a phone call away!

How to Register a Bond in 8 Easy Steps

Are you a first-time buyer wondering how to register a bond? After weeks of scouring the property market, you’ve finally found the perfect dream house and couldn’t be more excited to make an offer. An intricate, regimented and lengthy process with many processes, procedures, fees and formalities—buying a house, apartment or piece of land is a big financial commitment, but also a very exciting one.

Parties involved in the bond registration process

If this is your first-time inquiring about a bond registration, it is important to get an understanding of all the different parties involved. There is the Seller, the Estate Agent, the Buyer, the Transferring Attorney (appointed by the seller to transfer the property into the buyer’s name), the Bond Attorney (appointed by the bank granting the bond), and then there is the Cancellation Attorney (appointed by the bank to cancel the current bond of the seller).

While it is common to have a separate bond, cancellation and transferring attorney, it is also common to have one conveyance attorney that deals with over one or all the above transactions. Here’s how to register for a bond in 8 easy steps:

1. Sign an offer to purchase—your first step would be to enter an offer to purchase which contains the terms and conditions of the property sale. You will need the offer to purchase to apply for the bond at the bank.

2. Bond approval—this can take up to six weeks, but once the bank has approved your bond, the bank will request that the bond attorney registers your bond.

3. Signing of property transfer documents—this is where the seller requests the title deed and cancellation figures from the bank and the rates and taxes statement to guarantee that the account is up to date.

4. Purchaser signs a loan agreement—the bond attorney will contact the conveyance attorney to inform on the amount available for guarantees. The bond attorney will also request the draft transfer deed and that the purchaser also signs the loan agreement.

5. Cancellation of the sellers bond—the conveyance attorney will then request the bond cancellation attorney to cancel the seller’s bond on receipt of a guarantee for the outstanding amount.

6. Buyer and seller signs the transfer documents—as soon as the bond attorney receives a copy of the title deed, guarantee and cancellation figures, the buyer and seller will both sign the transfer documents. The buyer will then pay the transfer costs to the attorney so that the attorney can pay the transfer duty, and rates and taxes.

7. Bond documents lodged at the deeds office—once signed and paid in full, they will lodge the documents at the deeds office. The deeds office will take up to three weeks before they register the bond.

8. The bank pays the loan—on the exact day they register the bond, the bank will pay out the loan.

While the 8 steps above are just a basic guide, there are many complex and time-consuming formalities that demand a lot of red-tape, which is why it is best to partner with an experienced conveyance attorney.

How to Avoid the Infamous CCMA Headquarters

Lost a CCMA case against an employee and now you’re forced to pay your worker 24 months’ salary? Not glorified as an “ATM” for nothing, once they have awarded your employee compensation, they can have the sheriff attach your property and sell it in execution if you don’t pay.

Today, many businesses don’t think twice before dismissing an employee and as a result, they end up paying big, but not because the employee was right, and they were wrong to dismiss them, but because the employer never followed the correct procedure.

The CCMA deals with over 100,000 cases each year

Founded on the principle of conciliating first before arbitrating, the CCMA is an independent body established by law to carry out a range of workplace dispute prevention and resolutions. Due to word of mouth, employees at all levels know of the fact that, for little or no cost, they can bring a case against an employer who has treated them unfairly. In fact, besides the thousands of cases handled by the Labour Court, Labour Appeal Court, bargaining councils and private arbitration forums, the CCMA deals with over 100,000 cases relating to unfair labour practice each year. Any employer can end up in CCMA headquarters. Here’s how to avoid CCMA headquarters:

Know the code of good practice on dismissals

Out of all workplace disputes, such as a demotion, discrimination, illness, injury, poor performance, probation, retrenchment, sexual harassment, suspension, victimisation and whistle-blowing, 82% of CCMA cases relate to unfair dismissal. Whether it was theft, discrimination or harassment, the CCMA doesn’t care why you dismissed the staff member, the only thing the CCMA cares about is whether you dismissed them fairly.

Always follow procedure and keep a paper trail

Let’s say the employee took a laptop without permission and you dismiss them the very next day. While you may think theft is an open and shut case, it’s not as straightforward as you think, especially where the CCMA in concerned. First, did you have a disciplinary hearing, allowing the employee to explain and defend their case, and did you notify the employee of the rules about not taking company equipment home? Is it in writing and did your employee sign the document? Whether the position is temporary or permanent, the employer needs to satisfy several requirements before they can dismiss an employee. And if there is no paper trail to prove that they have followed the procedures set out by the LRA, a business can pay up to 24 months’ salary or more in compensation.

Dealing with misconduct, poor performance, and many other labour related issues that often turn into dismissal often results in impulsive decision making, which results in costly legal consequences.

To avoid a trip to CCMA headquarters, it is always best to get advice from a labour law expert to assess any form of workplace dispute before you take action. Should you find yourself at CCMA headquarters unexpectedly; labour law experts can assist you in preparing for the arbitration hearing.

How Much Divorce Lawyers Cost in South Africa

Has your marriage run its course, agreed to call it a day? In our society, there will always be marriage, and there will always be divorcing. A stressful and painful event that can be straightforward and cheap or emotionally and financially crippling – the last thing you need is to add to that stress by worrying about how you will cover the divorce lawyer costs.

As one of the top divorce specialists in South Africa, we’re here to give you some good solid advice on how to keep those costs right down. Follow these two guidelines and your divorce will be quick, straightforward and cheap.

Stay far away from cheap, aggressive divorce lawyers

Based on your particular circumstance, it’s normal for a spouse to be filled with rage and vengeance. Maybe you want to punish your spouse by going out and finding the cheapest and most aggressive lawyer you can find, hoping they will make them suffer. But, what many scorned people don’t realise is that they’re not just hurting their spouse by doing this, they’re hurting themselves and their children. Many cheap, aggressive divorce lawyers prey on uninformed and distressed people with little or no experience in Divorce Law. These are the divorce lawyers you need to steer clear of.

Contested vs. uncontested

While divorce in South Africa is pretty much straightforward, it can either be cheap or costly. This depends on the circumstances of your divorce. While the South African Divorce Act 70 of 1979 provides for a no-fault divorce, there are typically two types of divorces: contested and uncontested. The divorce, you choose will dictate your divorce lawyer’s costs. Whereas a contested divorce can take years to complete and can leave both parties financially shattered, an uncontested divorce is straightforward, cheap and quick.

The bottom line is that a divorce can be financially and emotionally crippling on both parties involved, and not only do your costs depend on the divorce lawyer you hire, but it also hinges on the divorce you choose.

Polygraph Testing in South Africa

Got some serious workplace issues that require polygraph testing? Business is tough, and while it’s the goal of every entrepreneur to run a thriving, profitable business, it’s no easy feat in this day and age. In a volatile economic climate such as ours, five out of seven new businesses fold within its very first year. While finances and lack of marketing play a huge role, employees are the real culprits.

Believe it or not, the crippling effects of the incorrect employees can easily drive a company to its death. If you’re an employer looking to screen your employees in a much more efficient way, or if you’ve had to deal with misconduct, theft or fraudulent behaviour, and are considering polygraph testing, then make sure you have all the facts at hand before you commit to the process. Is it recognised by the CCMA, is it accurate, and is it enough to justify dismissal?

What is polygraph testing?

Although polygraph testing is used in other countries, it is a fairly new concept in South Africa, especially relating to workplace disputes. Similar to the criminal justice system, polygraph testing refers to a device that simultaneously measures and records selected physiological activities or electrophysiological activity.

Polygraph testing captures four types of psychological data: blood pressure, heart rate, respiration rate, and skin conductance (subcutaneous sweating). When examined, the person will either fear being caught lying and reflect that fear or their actions will reflect no fear, which is picked up by the polygraph test.

Can an employee be forced to take a polygraph test?

There has been an enormous interest in South Africa regarding the use of polygraph testing in both pre-employment and misconduct screening. But is it legal and can a business force an employee to take the test?

While it’s not illegal to perform polygraph tests in the workplace, they do not recommend it as the first course of action. If you’re in the dark about polygraph testing, here are some important facts to keep in mind:

• The test is voluntary
• Employee rights must be explained before the test commences
• Only questions discussed prior to the examination must be used
• The employee has a right to have an interpreter
• Abuse, discrimination or threats are not tolerated

Is polygraph testing enough to justify dismissal in South Africa?

In 2009, The Labour Court was confronted with a dismissal based solely on polygraph test results. In Mustek Ltd v Tsabadi NO & Others, several laptops went missing from the premises and the workers were forced to do a polygraph test. The six workers who failed the first polygraph test were retested, and the four who failed the test again were instantly dismissed. This shows that at least two of the negative results were not reliable.

After examining the use of polygraphs in the workplace, the court confirmed that the results of polygraph tests alone do not justify an employee’s dismissal. Polygraph testing, used on its own does not make up a basis for a finding of guilt and does not justify dismissal. However, if there is other evidence of misconduct, polygraph testing can be regarded as an aggravating factor and can be used in support of the other evidence.