Monthly Archives: July 2016

Rescission of judgement

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CM_07_A4Imagine receiving the nasty surprise that default JJ has been entered against your name because of a summons that you have never even received. It is necessary that you know the procedure of how to rescind a default judgement to get you out of this unwanted situation. Many people are confronted with the unfortunate situation of a judgement being entered against their name, without even being aware that legal action is being taken against them. The reason for this is that when a party fails to deliver a notice of intention to defend a summons, a Plaintiff is entitled to lodge an application for default judgment.[1]

The reason for many Defendants not filing a notice of intention to defend, is the fact that they simply never receive the summons initiating an action against them. Personal service of documents by the Sheriff is only required where the matter affects a person’s personal status, such as with divorces and sequestrations. As it is not a requirement for the Sheriff personally, to serve a summons on a person, it can lead to situations where the Defendant never sees the summons, although the Sheriff stated that the summons has been legitimately served.[2] An example hereof many people who indicate their domicilium citandi et executandi or nominated address where notices are sent, in an agreement. In the event of the Defendant moving, the Sheriff will still deliver the summons to this address, but the Defendant will never receive it.

In the event of a Defendant not receiving a summons, certain steps have to be taken to have the judgment rescinded. The Defendant has to serve and file his application for rescission of judgment within 20 days after becoming aware of the judgment that was entered against him.[3] The Defendant (now the Applicant) is required to set out in an affidavit why the matter was not defended and what the bona fide defence is to the claim. The onus is upon the Applicant to set out legitimate reasons for why the matter was not defended.[4]

When bringing an application for the rescission of judgement before court, the following principles are applicable:[5]

The Applicant must give a reasonable explanation for his default. The court will be unwilling to help the Applicant if it is found that he was aware of the proceedings against him or if the default was simply due to his own negligence. If the Applicant’s default is of a wilful or negligent nature, these will serve as considerations that the court will take into account when deciding whether an application should be granted.

In many cases an Applicant simply rescinds a default judgement to delay the inevitable. It is therefore necessary for the Applicant to show that he is not simply delaying the Plaintiff’s claim. A bona fide defence, in other word a genuine defence, must therefore be shown, although it is not required to deal fully with the merits thereof or produce any evidence in this regard.

Ultimately, the court has discretion whether to rescind the default judgment or not, based on whether good cause was shown by the Applicant.[6]

Although it involves an unwanted and often lengthy and expensive process, it is important to have any judgments against your name rescinded as soon as possible, as they have a negative impact on your credit rating. These judgements, if executed, will also leave you highly annoyed when the Sheriff shows up on your doorstep with a warrant of execution to seize your personal belongings.

[1] Magistrates Court, Rules of Court, Rule 12(1)(c)

[2] Magistrates Court, Rules of Court, Rule 9(3)

[3] Magistrates Court, Rules of Court, Rule 49(1)

[4] Du Plessis v Tager 1953 (2) SA 5 (O)

[5] Grant v Plumbers (Pty) Ltd 1949 (2) SA 470 (O)

[6] De Witts Auto Body Repairs v Fedgen Insurance Co Ltd 1994 (4) SA 705

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)

Facebook`s revenge

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Facebook, Twitter and other social network sites are part of many people’s lives and serve as a useful vehicle for sharing one’s personal views. However, these sites may have unfortunate ramifications. Let’s be honest, ranting in public about your boss has never been seen as a smart career move. It is one thing to speak your heart out about your boss to a friend over a drink, but for some reason or another, employees tend to lose their inhibitions when there is a computer screen between them and the world out there.

What happens when an employee makes use of a to air his/her views or to say nasty things about his/her employer?

Courts have held that it is fair for an employer to dismiss an employee for posting intentionally offensive statements about his/her employer on a social networking website like Facebook.

In Sedick & another vs Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA), employees were dismissed for bringing the company’s name into disrepute by publishing derogatory comments about the owner of the company on Facebook. The employees claimed that the employer breached their right to privacy by accessing their profiles on Facebook.

What happened?

The employees, De Reuck and Sedick, worked for a fashion accessories company. The company’s Marketing Manager logged onto her Facebook account and navigated to De Reuck’s Facebook page because she wanted to send her a friend request. She was able to see everything on the employee’s Facebook wall without being given access as a friend. She came across numerous posts by Sedick and other employees where they exchanged several snide remarks, which included the following: “Trust me, no one can put up with so much shit when the f*cking kids join the company!”; “From so-called professionalism; 2 dumb brats running a mickey mouse business”; “… today was hectic with Frankenstein”; “What an idiot”; “A very ugly man with a dark soul”.

The right to privacy?

The Commissioner noted that, in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002, section 4(1), “Any person … may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.”

According to the Commissioner, the internet is a public domain and Facebook users have the option to restrict access to their profiles as well as the information that they publish. Because of the employees’ failure to make use of the privacy option, they had abandoned their right to privacy and the protection of the above mentioned act.

Fair dismissal?

The employees argued that they had not damaged the company’s reputation because they did not directly refer to the company or anyone who managed it. The Marketing Manager and the Arbitrator agreed that the references to the company and its management were obvious, because the people who were reading the comments would probably have known what and whom they were about.

The Commissioner held that, considering what was written, where the comments were posted, to whom they were directed and by whom they were made, the comments brought the employer’s good name into disrepute with persons both inside and outside the organisation.

The Commissioner confirmed that a dismissal under such circumstances could be fair if the employer follows the correct procedures and if the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act.

The moral of the story is: if you had a really rotten day at the office and are about to post some nasty comments about Mr or Mrs Boss, hold on a second. Do not write under the influence of alcohol, anger or frustration, as this sharing might get you fired.

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)

How to avoid a court battle with mediation

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CM_07_A2In the case of a legal dispute where the parties involved do not want to go to court, mediation offers an out-of-court alternative. On the other hand, litigation involves two parties enforcing or defending their legal rights through court. Mediation is done with the assistance of a mediator. Who is a mediator? The mediator is someone chosen by the parties and is sometimes a lawyer. However, the mediator doesn’t have to be a lawyer and can also be experts from other professions. The background of the chosen mediator will most likely depend on the type of dispute. In a dispute concerning the construction of a building, an engineer could be chosen to act as a mediator because of their specialised knowledge of construction sites.

All mediators are chosen from a panel of accredited mediators appointed by the Minister of Justice and Correctional Services. They would have also had mediation training, meaning they’re not random professional people from the public. The mediation clerk will help the parties decide which mediator is best for their particular dispute. As mentioned, the type of dispute will play a major role in the type of mediator appointed or suggested.

The job of the mediator is to facilitate discussions between the parties who have a dispute. Among other things the mediator assists them in identifying and solving issues.

What’s the point of mediation?

The point of mediation is to settle disputes peacefully. It has few technicalities and promotes reconciliation between two opposing parties who may have had a misunderstanding or simply a bad experience. Litigation is more time-consuming and usually leaves someone at a disadvantage. Litigation is often sort out in hospital disputes in circumstances where a patient feels they’ve been neglected or mistreated by a doctor. Instead, mediation can offer both the parties a beneficial outcome and help avoid an ugly court case. An unhappy patient may approach the hospital where they were treated and come to an agreement where the hospital can help the patient find better treatment or assist them in one of their immediate needs. The patient would then not sue the hospital, meaning the hospital wouldn’t lose money or their reputation.

What are the advantages of mediation?

The mediation process has several advantages. The most obvious one is that the parties involved in a dispute don’t have to go to court and can settle the issues much more efficiently and inexpensively. However, some people may decide to ignore mediation for litigation, which is far more expensive and prolonged. Mediation offers the added benefit of providing a “win-win” situation for both parties through negotiation and compromise.

So who is right and who is wrong?

A mediator does not declare who is right and who is wrong in a dispute nor do they give the parties a final solution by judging them. It is the responsibility of the opposing parties to find their own solution with the help of the mediator.

The mediator will draw from his/her professional experience in the particular matter and use that to advise the parties involved in a dispute. That’s why a mediator is chosen with experience in the field over which the parties are fighting about. If the parties have come to an agreement the mediator will help draft a settlement agreement, which is enforceable in law as a contract.

Reference:

Justice.gov.za. Department of Justice and Constitutional Development, Civil Law. [online] Available at: http://www.justice.gov.za/mediation/mediation/ [Accessed 18/05/2016].

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)

What happens if I die without a will?

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CM_07_A1Attorneys often emphasis the fact that you should have a will drawn up and revise it regularly in order to facilitate the bequeathing of your possessions after your death. Many people still omit to do this. The problem is that, should a person die without leaving a valid will, in other words intestate, his/her estate will be administered and distributed according to the stipulations of the Intestate Succession Act No 81 of 1987.

Below is a basic example of the effect an intestate death will have on the distribution of an estate. Should the composition of the beneficiaries of the deceased be more complex, the administering of the estate in terms of the Intestate Succession Act will also become more complicated.

Let us assume that person A dies and the value of his estate is R1.8 million. He is survived by his wife (B) and 2 children, of which one is of age and the other is a minor.

Scenario 1:

A and B is married out of community of property.

B inherits R250 000 or a child’s portion, whichever is the largest.

A child’s portion is calculated by dividing the total value of the estate by the spouse and number of children, in other words R1.8 million/3 = R600 000.

The spouse and children therefore inherits R600 000 each.

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that the minor heir’s inheritance should be placed in e.g. a Testamentary Trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age.

Scenario 2:

A and B is married in community of property.

B inherits 50% of the estate due to the marriage in community of property.

B also inherits R250 000 or a child’s portion, whichever is the largest, with regard to the other half of the estate.

A child’s portion is calculated by dividing half of the total value of the estate by the spouse and number of children, in other words R900 000/3 = R300 000.

The spouse is entitled to R900 000 as a result of being married in community of property. She further inherits R300 000 because of the Law of Intestacy. Therefore, in total, she receives R1,2 million.

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that the minor heir’s inheritance should be placed in e.g. a Testamentary Trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age. It is therefore clear that Intestate inheritance may result in an unpractical and often even impracticable division of assets.

The fact that the inheritance of the minor will be paid to the Master’s Guardian’s Fund may place the spouse in such a dilemma that she has to devise plans to finance the amount payable to the Master’s Guardian’s Fund to the benefit of the minor heir. Alternatively she could register a mortgage against an immovable property in favour of the Master’s Guardian’s Fund.

In case of death without a valid will there will of course be no person or institution appointed to support the surviving spouse in the administering of the estate. This should not usually present a huge obstacle, but the spouse should consider carefully which person or institution she appoints to assist her in this task. She should also negotiate the Executor’s fee with the relevant person or institution before the administering of the estate commences.

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)