Attorneys Arshana Shyamkishore & Associates

PUBLIC DISCLOSURE

REQUIRED DISCLOSURE BY INTERN ESTATE AGENTS

REQUIRED DISCLOSURE BY INTERN ESTATE AGENTS
Intern estate agents are reminded that they are obliged, pursuant to the provisions of regulation 2(4)(a) of the Standard of Training of Estate Agents Regulations, 2008, to disclose the fact that they are intern estate agents on all printed material relating to their activities as estate agents. They are required, therefore, specifically to disclose the fact that they are intern estate agents on, for instance, all business cards, letterheads, pamphlets, brochures and any form of advertising, save only for advertisements appearing in the ‘smalls’ section of the press.
Intern estate agents may not, whether directly or indirectly, hold themselves out or advertise that they have complied with the prescribed educational requirements or that they are full status estate agents.
Intern estate agents may also not complete or draft any documentation relating to any transaction negotiated by them, in their capacity as intern estate agents, otherwise than in the presence of a principal estate agent or of a full status estate agent who has continuously held a valid fidelity fund certificate for a period of at least three years. That principal or full status estate agent must, in addition, certify on the documentation in question that such documentation was completed in his/her presence.

Issued by: Estate Agency Affairs Board
Date of issue: 12 April 2017

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

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Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Court proceedings

A surefire way to win a case is to be prepared: -

Only tender documents that are necessary and essential for your matter

Witness testimony must be truthful, and free of collusion

Evidence presented must be consistent, concise, precise and amplify your version of the events.

Listen carefully to questions put to you and ask for them to be repeated if you did not understand what is required of you before you answer.

Answer questions from the court and the opposition succinctly and in a calm manner.

Request from the court that your matter stand down should you need a short adjournment to compose yourself or secure integral evidence before judgment is handed down.

Do not interrupt anyone while they are speaking.

Be respectful of court etiquette at all times.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Prospects of Success

With inflation on the increase and the cost of living on a steady rise, many would adopt a prudent approach to litigating unnecessarily.

Not so, however for a couple who notwithstanding being legally represented in an interpleader hearing, successfully lost their case to our law firm with a cost award in our favour.

The golden question for your attorney at the first consultation is this one:

"What are my prospects of success?"

Should the question remain unanswered, alternatively be deflected by your legal representative, walk away.

Remember: "A fool and his money are soon parted"

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

The Judiciary

The Magistrates’ Courts are the lower courts which deal with less serious criminal and civil cases. They are divided into Regional Courts and District Courts. In Criminal Courts the state prosecutes people for breaking the law. Criminal Courts can be divided into two groups:

Regional Magistrates’ Courts
Ordinary Magistrates’ Courts (also called District Courts)

Currently, Regional Magistrates’ Courts only deal with criminal cases whereas the District Magistrates’ Courts deal with criminal and civil cases. The Magistrate makes the decisions in a Magistrates’ Court; sometimes with the support of lay assessors. Magistrates’ Courts can be divided into either criminal courts or civil courts.

The Regional Magistrates’ Courts deal with more serious cases than the ordinary Magistrates’ Courts - for example, murder, r**e, armed robbery and serious assault.
In terms of the Criminal Law (Sentencing) Amendment Act (No 38 of 2007) a Regional Magistrates’ Court can sentence a person who has been found guilty of offences that include murder or r**e to imprisonment for life. The Court can also sentence people who have been found guilty of certain offences such as armed robbery or stealing a motor vehicle to prison for a period up to 20 years. A Regional Magistrates’ Court can impose a maximum fine of R300 000.
Regional Courts now have civil jurisdiction to the extent that divorce matters can now be heard there.

District Courts try the less serious cases. They cannot try cases of murder, treason, r**e, terrorism, or sabotage. They can sentence a person to a maximum of 3 years in prison or a maximum fine of R100 000.

Ordinary Magistrates’ Courts can hear civil cases when the claims are for less than R100 000. They cannot deal with certain matters, such as:

Divorces;
Arguments about a person's will;
Matters where it is asked if a person is mentally sane or not.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

Grounds upon which the validity of a will may be challenged

Some general grounds are:

A lack of the requisite formalities

Forgery

Testamentary capacity

Undue influence.

Witness evidence may also be heard to determine validity.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Fraud and Forgery

Forgery and uttering

Forgery consists of unlawfully and intentionally making a false document to the actual or potential prejudice of another.

Uttering consists of unlawfully and intentionally passing off a false document (forged) to the actual or potential prejudice of another.

Fraud

It is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

Labour Law

Here is a helpful link to report an unfair dismissal to the CCMA using the e-referral platform.

https://cmsonline.ccma.org.za

In terms of the Labour Relations Act (LRA), every employee has the right not to be unfairly dismissed.

The Labour Relations Act distinguishes between what is known as “automatically unfair dismissals”: if a person is dismissed for reasons included under this category of dismissals, it will be automatically unfair and dismissals based on reasons of conduct, operational requirements (retrenchments), and capacity.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

Conveyancers appointed as ‘police force’

Conveyancers are prohibited from paying any remuneration or other money to an estate agent unless that agent and agency has provided the conveyancer with a copy of his/her/its FFC that was valid during the time that the transaction was concluded and at the time of making payment.

ESTATE AGENTS DISQUALIFIED FROM BEING ISSUED WITH A FCC

is not a South African citizen and a lawful resident of South Africa;
has been found guilty of contravening the Act, the Estate Agency Affairs Act or any similar legislation in any other jurisdiction within the preceding five years;
has been found in any civil or criminal proceedings by a court of law (locally or elsewhere) to have acted fraudulently, dishonestly, unprofessionally, dishonourably, or in breach of a fiduciary duty, or any other offence carrying a sentence of imprisonment without the option of a fine;
is of unsound mind;
is an unrehabilitated insolvent;
has been dismissed from a position of trust at any time within the preceding five years by reason of improper conduct; has been prohibited by any legislation (enacted in South Africa or elsewhere) from practising as a property practitioner or occupying a position of trust.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Child Protection Week

National Child Protection Week (CPW) is observed in South Africa annually to raise awareness of the rights of children as articulated in the Children's Act of 2005.

The campaign began in 1997 and it aims to mobilise all sectors of society to ensure that children and cared for and protected. While the initiative is led by the Minister of Social Development, it is every citizen’s duty to a role in protecting children and creating a safe and secure environment for them.

Children in South Africa live in a society with a Constitution that has the highest regard for their rights and for the equality and dignity of everyone.

Protecting children from violence, exploitation and abuse is not only a basic value, but also an obligation clearly set out in Article 28 of the South African Constitution. The aim of child protection is to ensure the safety, well-being, care and protection of children through an integrated multi-disciplinary approach. Despite the best efforts of the South African government and civil society to protect children from child abuse, neglect and exploitation, many children still remain vulnerable.

Reducing the high levels of violence against children is among South Africa’s most overwhelming tasks. Despite the country’s progressive child protection laws, policies and programmes preventing and addressing violence against children, it remains a major challenge.

Resources

Get help

The Department of Social Development has a pilot a 24-hour call centre dedicated to provide support and counselling to victims of gender based violence:

The toll free number to call is 0800 428 428 (0800 GBV GBV) to speak to a social worker for assistance and counselling.
Callers can also request a social worker from the Command Centre to contact them by dialling *120*7867 # (free) from any cell phone.
You can also get help at:

Childline South Africa: 0800 055 555
Child Welfare South Africa: 0861 4 CHILD (24453) / 011 452-4110 / e-mail: [email protected]

Source: South African Government

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

It is awful to be subjected to abuse in a relationship.

It is even worse to remain in a domestic relationship, enduring a continuous cycle of violence, threats and verbal and psychological/emotional abuse.

Laws have evolved worldwide to protect those who endured oppression, intimidation and systematic abuse, often remaining silent for many years while the abuser took advantage of their fear and silence.

Protection orders are applications from Court, designed to specifically protect the abused from all of the above and more. Courts may even direct the abuser to vacate the residence and order emergency monetary relief to be paid when granting interim orders.

End the abuse. Approach the Court for relief from Domestic Violence.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

Returns and Refunds

Not a complicated process to understand, however many businesses fail to comply with the law, specifically the Consumer Protection Act, when dealing with returns and refunds.

Furthermore, businesses are prohibited from making false or misleading claims about refunds in their advertising or promotions. For example, a business cannot claim that customers are entitled to a refund in all cases when this is not the case. This is considered a violation of the CPA and could result in legal action being taken against the business.

When it comes to the actual process of obtaining a refund, consumers have the right to a refund in cash or in store credit and they have the right to choose their preferred method of refund. Businesses are also prohibited from imposing unreasonable conditions on customers when it comes to refunds, such as requiring customers to provide proof of purchase or to return goods in their original packaging.

Here is an example of a Return and Refund that is in violation of the Consumer Protection Act.

"RETURN AND REFUND POLICY

Return of unwanted products:

Cooling-off period:

We have a 7-day return policy, which means you have 7 (seven) days after receiving your item, to request a return.

You must return any products in a brand new condition with all original packaging and materials (including any accessories or parts relating thereto) to us. You will also need to include the receipt or proof of purchase of the specified item."

The CPA provides South African consumers with important rights, including the right to a refund, when goods or services are defective, not delivered as promised, or when consumers cancel a fixed-term contract within the cooling-off period. It is important for consumers to be aware of these rights and for businesses to comply with the CPA’s requirements for refund policies. By doing so, both parties ensure that their rights are protected, and that fair and just results are obtained.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Have a wonderful, safe and peaceful Easter everyone!❤

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Property Law

WHO NEEDS A FIDELITY FUND CERTIFICATE (FFC)

Any person facilitating or providing a service in the sale or lease of property in any way and does not use the services of a property practitioner must hold a Fidelity Fund Certificate (FFC) through the Property Practitioners Regulatory Authority (PPRA) formally known as the EAAB. Business undertakings shall include any activity, whether sold as a whole or going concern, or as part of a business, or by means of transferring the beneficial ownership.

“A property practitioner is any person who, for the acquisition of gain, directly or indirectly, on the instructions or on behalf of another:

sells, purchases, manages or publicly exhibits for sale any property or business undertaking;

leases or hires or publicly exhibits for hire any property or business undertaking;

collects or receives money payable for a lease;

provides, procures, facilitates, secures or otherwise obtains or markets financing for or in connection with the management, sale or lease of a property or business undertaking;

and

renders services as an intermediary to affect the conclusion of an agreement to sell or let a property or business undertaking (except where this is not done in the ordinary course of the person’s business; where a natural person does it in their capacity, or where the person is an attorney, candidate attorney or sheriff).

Thus, the definition extends well beyond estate agents. It includes:

Auctioneers

Property developers (not natural persons selling their own property)

Property managers

Franchisees

Providers of bridging finance and bond brokers fall under this ambit but have applied for exemption.
Financial institutions are not included as they are covered under their Act.
Anyone who falls within the ambit of the definition of a “property practitioner” is required under the Property Practitioners Act no. 22 of 2019 to register as a property practitioner and obtain a certificate issued by the Fidelity Fund on an annual basis. Refer to Section 47(1) of the Act.

Conveyancers are prohibited from paying any money to a property practitioner without receiving a copy of that property practitioner’s valid Fidelity Fund certificate.

Note: The PPA will not apply to the following persons who do not do any of the above-listed activities in the ordinary course of their business;

Persons who sell their property
An attorney
A candidate attorney
A sheriff.”

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

In a legal dispute, one party has the burden of proof to show that they are correct, while the other party has no such burden and is presumed to be correct.

The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.

The burden of proof is usually on the person who brings a claim in a dispute.

In civil suits the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the plaintiff, and the defendant bears the burden of proving an affirmative defense.

The burden of proof is on the prosecutor for criminal cases, and the defendant is presumed innocent.

Should the claimant fail to discharge the burden of proof to prove their case, the claim will be dismissed.

In our law, a famous maxim:

"He who alleges must prove"

The general rule is that the parties in civil matters must prove their cases by evidence.

However admissions constitute an exception to this rule. An admission is a statement by a party which is adverse to that party's case. The party in question does not have to realise that something is adverse to his case for it to qualify as an admission.

Arshana Shyam

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on ALL your legal matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business WhatsApp : 063 037 9298

Mobile: 078 573 6501

Maintenance: Part 2 of 3

What expenses may be claimed?

You may claim reasonable support that is necessary for providing the child or other person who has a right to maintenance with a proper living and upbringing. This includes providing necessities such as food, clothing and housing, as well as paying for a proper education. The court may also order the father to contribute to the payment of laying-in expenses and maintenance from the date of the child's birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses, or may order that the child be registered on the medical scheme of one of the parties as a dependant.

To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.

Your view of the other parent's behaviour has no effect on your children's right to maintenance. You still have to pay maintenance, even if the other parent:

remarries

is involved in another relationship

does not allow you to see the children
and/or

if either party later has more children.

Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other.

Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

Part 1 of 3 in our Maintenance advice 😊❤💕

Maintenance Part 1

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support'.

Who must provide maintenance?

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by:

his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
his or her grandparents, whether or not the child's parents were married to each other. However, this varies from one case to another.

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:
The family member who claims support is unable to maintain himself or herself.
The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.

The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298

Maintenance Part 1

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support'.

Who must provide maintenance?

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by:

his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
his or her grandparents, whether or not the child's parents were married to each other. However, this varies from one case to another.

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:
The family member who claims support is unable to maintain himself or herself.
The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.

The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE.

For expert legal advice, peace of mind and speedy resolutions: -

Call us on (031) 4644940

Text us on Business WhatsApp: 063 037 9298

Make an appointment to consult on all your litigation matters.

Arshana Shyam

Small Claims Court Commissioner

Deputy Chairperson of the Small Claims Court Advisory Board

Office: (031) 4644940

Business whatsapp : 063 037 9298