VACANCY

POSTS            : X 2

TITLE             : JUNIOR ATTORNEY

LOCATION   : X 1 GAUTENG (HEAD OFFICE – PRETORIA) 

                          : X 1 LIMPOPO (POLOKWANE)

DESCRIPTION:

Admitted attorneys with at least one (1) year practice experience. Independently functional in litigation procedures (High Court & Magistrate Court). The applicants must be forward-thinking, innovative, motivated, self-driven and able to work independently and under pressure.

REQUIREMENTS:

  • Bachelor of Laws (LLB) with at least one (1) year post-admission practice experience.
  •  Valid driver’s license
  •  Excellent communication in English (verbal & written)
  •  Computer literate (Microsoft word, excel and outlook)

APPLICATIONS:

Submit your detailed CV’s and certified copies of certificates to davies@vilakazitauattorneys.com 

 CLOSING DATE: 16 MAY 2019

 NB: Please note that late applications will not be considered.

By |2019-04-16T10:41:20+00:00April 16th, 2019|Uncategorized|0 Comments

Default Matrimonial Regimes

Mapule Mdluli (Candidate Attorney) 

There is a reputable presumption that when a couple enter into a civil marriage the parties are marrying in community of property.

The community of property regime is referred to as the primary matrimonial property system of the Republic of South Africa. In terms of this regime, the spouses share all their assets and liabilities. The spouses become joint co-owners and their assets become undivided and indivisible half shares. This includes assets which they acquired before and during the subsistence of their marriage.

The issue with the community of property system is that both the spouses will have a limited capacity to transact in certain circumstances. Should a spouse wish to enter into for an example a business contracts, the spouse has to obtain a consent from the other spouse.

However there are those exceptions to the general rule that all assets of spouses become joint. There are those benefits that are excluded for instance any amount accrued to the spouse by way of damages, any donations between the spouses, any inheritance et cetera.

Upon the dissolution of a civil marriage in community of property through divorce, the balance of the joint estate after all the liabilities have been paid, must be divided equally amongst the spouses, unless a forfeiture order is granted against one of the parties, or an adjustment in favour of one them is needed.

If the prospective spouses do enter into an antenuptial contract to exclude the community of property, section 2 of the Matrimonial Property Act 88 of 1984 makes a provision for the accrual system. This matrimonial regime is the second default matrimonial property system. Irrespective of whether the spouses do not state in their antenuptial contract that they would like to get married with accrual system, it would be a default regime for them. Spouses share equally in the accrual growth in their estates during the subsistence of their marriage.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2019-02-11T08:10:43+00:00February 11th, 2019|Uncategorized|1 Comment

What is meant by administration of estates ?

Thabo Kgatle (legal Assistant)

Administration of estates is a process whereby after the death of a person, his or her assets are collected and thereafter distributed to the rightful heirs.

In terms of the law, any person who had assets, his/her death has to be reported to the office of the Master of the High Court of the area where she/he was ordinary resident.

The person appointed by the Master of the High Court to administer the estate of the deceased person is referred to as an executor. The law imposes certain powers and duties on the executor relating to the administration of the estate.  The executor does not necessarily have to be an heir to the estate.

In administering an estate the executor first has to determine whether the deceased died with or without a valid will.  In a case where the deceased died with a valid will, this is referred to as testate dispensation. Where the deceased died without a will or his/her will is invalid, we say he/she died intestate.

After the executor has collected the assets of the deceased and paid the debts of estate, he/she has to distribute the estate to the heirs. This is the ultimate purpose of administration of estate. The situation applies whether the deceased died testate or intestate.

The process of administration of estates may take a long time due to:

  • The legal requirements that have to be complied with;
  • the process of locating the assets of the deceasing;
  • the process of locating and verifying the debts of the deceased;
  • At times the validity of the will may be challenged in Court.

It is further very important that the surviving spouse and heirs of the deceased should assist the executor in the process of the administration of the estate. The executor should also keep the surviving spouse and heirs, if the deceased was married, of the processes and progress made in the administration of the estate and the outstanding issues.

After the administration of the estate has been finalised, the executor has to draft a document referred to as a Liquidation and Distribution Account. This document indicates:

  • All the assets of the deceased;
  • the debts and liabilities of the estate and how they were paid or to be paid;
  • and how the estate is to be be distributed among the heirs and the surviving spouse, if he/she was married.

The liquidation and Distribution Account has to be lodged with the Master for approval. If the Master approves the account, the executor can proceed to distribute the estate.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2019-01-28T07:49:08+00:00January 28th, 2019|Uncategorized|0 Comments

What is medical negligence?

Sibusiso Mtsweni (Attorney)

Medical negligence liability is incurred when patients suffer damages, which may be attributed to sub-standard care provided by health practitioners or hospital personnel in their treatment. A medical negligence claim may be grounded in either contract or in delict and is governed by the law of obligation.

One of the elements which make up medical negligence is an omission. An omission is required due to a duty a medical practitioner owes a patient.

Wrongfulness is present if the act or omission infringes a right protected by law or breaches a legal duty owed by a medical practitioner.

The aggrieved party must show that he or she has suffered harm. If no harm has been suffered, there is no claim. When suffering loss due to medical negligence, an aggrieved party can claim damages; that is, compensation or satisfaction. The purpose of the compensation is to restore the patient to the position he or she would have been in had the wrongful act not been committed.

Causation means that the damage suffered by the patient or plaintiff, must have been caused by the conduct of the defendant or medical personnel. The harm suffered must not be too remote and the loss would not have happened had it not been for the medical practitioner’s conduct.

Fault or blameworthiness is constituted by negligence and rarely by intention. The test will be adapted to the standard of the reasonable medical practitioner, or the reasonable specialist medical practitioner in the field, with a similar degree or professional skill, in the same circumstances as the person alleged to have provided sub-standard medical care.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2019-01-14T09:37:40+00:00January 14th, 2019|Uncategorized|0 Comments

Dear valued clients

Please note that our office will be closed on the 13 December 2018 for the festive holidays and re-open on 7 January 2018.

We wish you all a Merry Christmas and a Happy new year.

By |2018-11-23T07:08:17+00:00November 23rd, 2018|Uncategorized|0 Comments

Wrongful Arrest, when is an arrest wrongful ?

Maria Mokwebo (Director) 

An arrest is deemed wrongful when a person is physically detained without proper legal authority. An arrest may be made under normal circumstances when a police officer is in possession of a warrant of arrest. This does not mean that when a person is arrested without a warrant of arrest automatically the arrest is unlawful, a police officer with reasonable suspicions that a person has committed a crime or an offence, or is about to commit an offence may arrest without warrant. The suspicion must be reasonable. The arresting police officer must be able to justify their actions.

When a suspect is arrested, the arresting officer must, if in possession of a warrant of arrest and on request by the suspect, show the warrant to the suspect. If the police officer is not in possession of an arrest warrant, the suspect must be told the reasons for their arrest. An arresting officer must inform the suspect of their legal rights when arresting them as envisaged by the constitution.

Should a suspect be arrested without probable cause that they committed an offence; or be arrested without being informed of their rights; or be arrested with a warrant of arrest which contains false information given by the police officer to the court; or be arrested based on irrelevant considerations; or be arrested without reasonable cause, the arrest is unlawful. In some instances it is not required that the arresting officer be in possession of a warrant of arrest before effecting an arrest, for example where the suspect has just committed a crime such as shooting at another person. However, there are many instances where a person may not be arrested without a warrant of arrest.

A person who has been arrested and believes that the arrest was wrongful has a right to institute proceedings against the State to claim damages for such arrest. There are several heads of damages and the claimant must take care to claim for the correct category.

In some cases persons who are detained by the police die in detention as a result of police action. The dependents of such a deceased person will have a claim against the State for loss of support.

In short, everyone has the protection of the law and is entitled to sue the State where they are subjected to unlawful arrested. The critical questions are: Do you know what facts will qualify you to institute such a claim? Do you know the claim procedure? Can you correctly quantify such claim? Are you able to navigate your way through the court process without the assistance of a trained lawyer? The answers to all these questions are probably no. Most people will need such assistance. Self-help may be very costly in the end. As US President Abraham Lincoln once said, “He who represents himself has a fool for a client”.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-11-12T06:27:54+00:00November 12th, 2018|Uncategorized|0 Comments

Domestic Violence: Can you apply for a protection order against economic/financial abuse?

Dikakanyo Ramakobya

When one thinks of abuse, they turn to confine themselves to physical and or emotional abuse leaving “economic/financial” abuse as an aspect to be determined by the Maintenance Court and or the High Court. The answer is yes, undue and unreasonable deprivation of economic or financial resources is a form of abuse.

This form of abuse is defined in section 1 of the Domestic Violence Act 116 of 1998. It is defined as “a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the compliant requires out of necessity, including household necessities for the complainant, and mortgage bond repayments or payment of rent in respect of the shared residence, b) the unreasonable disposal of household effects or other property in which the complainant has an interest”.

It is clear from the above that, in succeeding with the application, one needs to allege and prove the following, the unreasonable deprivation, entitlement under law or that the complainant requires the financial out of necessity. In consideration of who may apply for the protection order in terms of this section, one must establish and prove the existence of a domestic relationship as defined in terms of the Act as follows:

the parties must be married to each other

the parties live or lived together in a relationship marriage, although they are not, or were not, married to each other, or are not able to be married to each other;

they are parents of a child or are persons who have or had parental responsibility for that child (whether at the same time)

they are family members related by consanguinity, affinity or adoption;

they are or were in an engagement, dating or customary relationship, including an actual or perceived romantic, intimate or sexual relationship of any duration; or

they share or recently shared the same residence.

In conclusion, financial deprivation it is indeed a form of abuse and one can successfully apply for a protection order from a Domestic Violence Court to prohibit the Respondent’s conduct and have him comply with his financial responsibilities towards the Applicant.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-10-29T08:24:04+00:00October 29th, 2018|Uncategorized|2 Comments

What is meant by Testate and Intestate Succession ?

Thabo Kgatle (Legal Assistant) 

Testate Succession

Testate succession is where a person has laid down in writing how his or her estate is to be distributed after he/she has passed on. The document in which the person instructs how his/her estate is to devolve after his/her death is referred to as a will. If the person wants to amend, add or alter his/her will, a document called codicil is then done to effect the necessary amendments, alterations or additions.

In terms of our law a will has to comply with certain stringent requirements in order for it to be valid. It is better to consult a professional for assistance in drafting a will. It is not advisable for a lay person to attempt to draft such a legal document which has far-reaching consequences.

It is further advisable to acquire the services of a professional to assist and advise you on estate planning before you draft your will.

A will is very important to secure the future and well-being of your family and loved ones. It should also be noted that your will can also assist you in forming a trust after your death. This aspect will be discussed in a later article where we discuss trust mortis causa and trust inter vivos.

Intestate Succession

In a situation where a person dies without having made a will or his/her will turns out to be invalid, the law of intestate succession comes into operation when his/her estate has to be administered. The law will identify the heirs to the deceased estate and distribute same to the said heirs.

It is very important to understand that our law provides a tried and tested formula which applies in the case where a person dies without a will or in the event his/her will turns out to be the invalid. This formula is based on the blood relationship between the deceased and his/her intestate heirs.

It should also be noted that it is possible for a person to die partly testate and partly intestate. Where a person makes a will which deals with part of the assets of the estate and fails to indicate what happens to the other assets not included in the will, such assets will devolve in terms of the law of intestate succession.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-10-15T06:38:31+00:00October 15th, 2018|Uncategorized|7 Comments

What is Police Brutality ?

Sibusiso Mtsweni (Attorney)

The police are quite often faced with situations, whereby they must use force. This is necessary for the performance of their duties. In cases where the police must arrest suspects and they resist arrest or attempt to flee, the police are permitted to use force which is reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent suspects from fleeing.

Furthermore, the law tries to protect suspects from the abuse of this power by requiring that the suspect must pose a serious threat to the arrestor or any other person, alternatively the crime that the suspect is alleged to have committed involves serious infliction of bodily harm.

Police brutality occurs when the police  use more force than is necessary to perform their duties. Therefore, police brutality is abuse of power in that excessive force is used to achieve a goal i.e arresting a person which minimal force can achieve

Police brutality is not limited to instances where police officers effect arrest or searches and seizures. Putting a suspect in a cell with no food or water without legal representation and being released without being charged may also be described as police brutality.

Furthermore there have been cases, where police officers assaulted civilians for no reason. In the case of Naidoo v Minister of Police (2015) ZASCA 152 the appellant was assaulted by a police officer whilst seeking assistance. It was not necessary to even use force, the above case reiterates the fact that police brutality is the use of unnecessary power.

Please note that our blogs do not constitute legal advice. Should you require legal advice on a specific topic or specific facts, you are free to contact our office for a consultation.

By |2018-10-02T07:05:42+00:00October 2nd, 2018|Uncategorized|1 Comment
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