PROTECTION ORDERS

Written by Cherise Hansen on February 16th, 2016. Posted in domestic violence

Written by Lanka Krűgel

domestic violence

It can be extremely scary and traumatizing if the person with whom you have been in a romantic relationship, starts acting abusively towards you. It often affects not only you, as the abuser’s spouse or partner, but also your children, siblings and/or parents.

The Domestic Violence Act 116 of 1998 (the “DV Act”) provides a means of obtaining protection against “domestic violence” by an abuser. The DV Act applies where a “domestic relationship” exists between the abuser and the victim.

A domestic relationship is one were the abuser and victim:

(a)    are or were married to each other, including marriage according to any   law, custom or religion;

(b)    live or lived together in a relationship in the nature of marriage, even though not legally married;

(c)    are the parents of a child;

(d)   are family members related by consanguinity, affinity or adoption

(e)    are or were in an engagement, dating or customary relationship; or

(f)    share or recently shared the same residence;

Domestic violence means –

(a)        physical abuse;

(b)          sexual abuse;

(c)           emotional, verbal and psychological abuse;

(d)          economic abuse;

(e)          intimidation;

(f)           harassment;

(g)          stalking;

(h)          damage to property;

(i)            entry into the victim’s residence without consent, where the parties do not share the same residence; or

(j)           any other controlling or abusive behaviour towards a victim,

where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the victim.

Victims are often unaware that they can obtain a protection order for “economic abuse” where the abuser unreasonably deprives the victim, or causes the victim to be deprived of, finances. Economic abuse includes situations where the abuser unreasonably disposes of household furniture and effects in which the victim has an interest.

“Emotional, verbal and psychological abuse” means a pattern of degrading or humiliating conduct towards a victim, including –

(a)          repeated insults, ridicule or name calling;

(b)          repeated threats to cause emotional pain; or

(c)           the repeated exhibition of obsessive possessiveness or jealousy, which is such as to constitute a serious invasion of the complainant’s privacy, liberty, integrity or security;

“Harassment” means engaging in a pattern of conduct that induces the fear of harm to a complainant including –

(a)          repeatedly watching, or loitering outside of or near the building or place where the victim resides, works, carries on business, studies or happens to be;

(b)          repeatedly making telephone calls or inducing another person to make telephone calls to the victim, whether or not conversation ensues;

(c)           repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the victim;

Because the DV Act only applies to people who are or were involved in a domestic relationship, it did not provide a solution for people who needed to apply for a protection order against someone with whom they were not in a domestic relationship – for instance a work colleague of the victim, or the new spouse of the victim’s former spouse.

A new act was therefore created, called the Protection from Harassment Act, No. 17 of 2011. This Act can be used by any person who alleges that he or she is being subjected to harassment. This act also allows for situations where the victim does not know who is harassing them, for example where the victim receives continuous threatening phone calls from an unfamiliar number.

When applying for an order in terms of the DV Act or the Protection from Harassment Act, the victim opens a case at the magistrates’ court in the area where the victim or the abuser permanently or temporarily lives, carries on business or is employed, or where the cause of action (“the act of abuse”) took place. The victim can choose to first go to a police station where police will assist the victim to complete the necessary documentation, however the documents must then be taken to court for a magistrate to look at.

If the magistrate is convinced that there is a possibility of harm being caused to the victim if the protection order is not issued immediately, then the magistrate will issue a temporary protection order, without the abuser’s knowledge, and tell the victim to return at a later date so that the court can hear the abuser’s side of the story and decide whether or not to make a final protection order.

It is crucial to note that after the victim has applied to the court for a protection order, the abuser must be informed of the application for the protection order as well as any return dates given by the court. It is the victim’s responsibility to take the relevant documents to the police station or sheriff of the court in the area where the abuser lives or works so that the documents can be formally “served” on the abuser. If the abuser does not have knowledge of the interim or prospective order, then the order has absolutely no power to protect the victim.

Once the application has been served on the abuser, the victim must make sure to obtain a report (“return of service”) from the police officer or sheriff who served it, and that report must be given to the magistrate as proof that the abuser received knowledge of the application.

Should the abuser disobey any of the terms of the temporary or final protection order, he may, under certain circumstances, be arrested.

If the victim needs to remove any personal belongings from the abuser’s residence, those items must be specifically listed on the application for a protection order. If the victim needs to remove a child from the custody of an abuser, that must also be listed on the application, even in situations where the victim is the mother of the child. Police officers will then be ordered to accompany the victim to the abuser’s residence to remove only the items listed on the court order.

Victims are often afraid to apply for protection orders as they fear that it might anger the abuser and cause the abuser to act even more violently. Victims are also often financially dependent on the abuser and see no way of being able to survive on their own. It is very important that the victim act quickly and apply for an order as soon as possible as the court might not believe that it is a serious situation if the victim did not act immediately after the abuse occurred.

It is also of utter importance that the victim explain the entire story in their affidavit when applying for the order, because they will not be able to change or add to their story later on.

The problem however is that it depends on the victim to stand up for him or herself. It helps a great deal if the victim has family or friends who can support them, emotionally and financially. There are numerous organisations that also provide wonderful support to victims, such as TEARS and churches.

If you are thinking of applying for a protection order, start the process immediately. The longer you wait the more difficult it is going to be. And once you start the application DO NOT GIVE IN to the abuser’s threats or charm or promises that the abuser will change.

Should you have any queries or need assistance with a protection order, feel free to contact us.

You can download the application for a protection order in terms of the DV Act here.

SELLING YOUR PROPERTY: A FEW THINGS TO REMEMBER

Written by Cherise Hansen on January 11th, 2016. Posted in conveyancer, transfer of property

Image from http://www.freedigitalphotos.net/images/

Click on image for credit

We know that the selling of property can be a very stressful time in any person’s life and have set out a few things that you need to consider and be aware of when selling your property.

BOND CANCELLATION

Most people have bonds over their property that need to be cancelled before the property can be transferred to the new owner.

Did you know that the banks require 3 months’ notice of the cancellation of the bond?

If the banks are not given 3 months’ notice that you are selling your property and thus cancelling your bond, the bank will add 3 month’s penalty to your cancellation figures. This figure may be reduced depending on how long the transfer takes. Thus if the transfer takes 3 months you will not pay penalties but if the transfer takes only one month, you will pay 2 month’s penalties.

We would thus advise that once you make the decision to sell your property, that you immediately give notice to your bank so as to save yourself the penalties that would be payable to the bank.

RATES CLEARANCE FIGURES

Did you know that when you sell your property, you, as the seller are obliged to pay for the rates clearance figures?

As the seller you are obliged to make payment of the rates clearance figures which are usually calculated 4 months in advance (from date that the figures are issued by the city council). Included in the rates clearance figures are any rates and taxes, water and electricity and other charges payable on the property that are in arrears for the last 2 years.

These figures are payable upfront and if it is not paid, you will not receive the rates clearance certificate that is required for the transfer to be lodged in the deeds office.

In addition to this, if there are any arrears owing in respect of rates and taxes, water and electricity and other charges which is older than 2 years, the city council will also include these figures in the rates clearance figures. If you cannot make payment of all the arrears upfront when making payment of the rates clearance figures, the conveyancer will have to provide the city council with an undertaking that they will make payment of all the arrears older than 2 years to the city council upon transfer of the property. These funds will come from the proceeds of the sale.

Thus it is very important that you ensure that you have sufficient funds to make payment of the rates clearance figures as calculated in advance (4 months) plus the arrears for up to 2 years (should you be in arrears). Should you be in arrears for longer than 2 years, you need to ensure that you will receive enough money from the transfer (after paying your bond and the estate agent’s commission, if any) to make payment of the arrears to the city council.

It is advisable to immediately notify the conveyancer attending to the transfer that you are in arrears and that you may not have the money to make payment thereof, to enable them to advise you in this regard.

 If you own a sectional title, you will also be liable to make payment of the levy clearance figures which enables the conveyancing attorneys to obtain a levy clearance certificate.

ELECTRICAL CERTIFICATE OF COMPLIANCE/ ELECTRICAL FENCE CERTIFICATE/ GAS CERTIFICATE

As the seller, it is your responsibility to obtain these certificates. It is also your responsibility to fix any issues that may arise to enable these certificates to be issued. If you think that there may be any problems that may have to be resolved to have these certificates issued, it is advisable that you contact an electrician immediately to advise you what the costs would be. Many transfers are delayed as a result of electrical problems that prevent the issuing of these certificates and this can also be an unexpected costly expense to you, as the seller.

Other issues that you will need to consider carefully are: occupational rental and when the purchaser will take occupation; is the purchaser obtaining a bond; is the sale dependant on the sale of the purchaser’s property; and the like.

As the seller, you are able to nominate and choose the conveyancer who you would like to attend to the transfer.

Should you have any queries regarding the transfer process or should wish that we assist in drafting the offer to purchase or the transfer of your property, kindly do not hesitate to contact us herein.

Divorced? Here’s why you should change your will.

Written by Cherise Hansen on July 27th, 2015. Posted in divorce, marriage, Uncategorized, wills

last will

You fall in love, get married and draw a will leaving all your worldly possessions to your spouse. Then divorce happens… and your will is forgotten. You may be lucky to find new love and you re –marry. You don’t make the time to draw a new will.

Then death happens and much to your new spouse’s dismay, your ex –spouse will now inherit all your worldly possessions.

Once you have a will, it is valid until it is revoked by a further will or your will is destroyed.

Most people forget to revoke their previous will after they get divorced. In terms of Section 2B of the Wills Act, Act 7 of 1953, if a person dies within 3 months after their divorce, and the will was executed before the date of divorce, then the will be carried out as if that person’s spouse had died before date of divorce, unless it appears from the will that the person intended their spouse to inherit in terms of their will regardless of the divorce.

What this means is that if you had a valid will before you get divorced in which your spouse would inherit; you get divorced and pass away within 3 months from the date that the divorce order is granted, then your ex-spouse will not inherit anything from you in terms of the will unless you made it clear that you intended to ex-spouse to inherit regardless of the divorce. If you pass away after this 3 month period and you had not yet changed or revoked your previous will, then your ex-spouse will inherit as per your will. You thus have a period of 3 months from date of divorce to change or revoke your will.

Divorced? Have you changed or revoked your will?

Quick Contacts

C Bekker & Associates

 
Address:
1st Floor, Block B, 37 Harley Street, Ferndale, Randburg.