Divorce and social media

beware what you share

In an urgent application before him the Honourable Justice Chetty had to consider whether he should confirm an interim interdict ordering respondent to remove defamatory statements about applicant on her Facebook page and restraining the respondent from posting further statements in this regard. [1]

The parties were not married to each other but were the biological parents of a minor child.

Applicant regarded the postings on Respondent as defamatory and demanded that she remove it from her Facebook wall.  The posting resulted in an active debate taking place between respondent and her friends and related to an incident relating to the applicant’s care or neglect of his minor daughter.

Respondent contended that she removed the posting and that she did not consider the content thereof as defamatory.  Applicant on the other hand contended that he had a prima facie right to approach the court to ensure that his reputation was not further harmed as he considered the postings to be harmful to him as a father, but also that it could have a detrimental impact on his business reputation and character.  An interim interdict was granted.

In considering whether to grant a final interdict the court referred to a passage from H v W where it was found that it is not good enough to as a defence against defamation that the published words may be true, it must also be to the public benefit or in the public interest that they be published. ‘The courts do not pander to prurience.’ [2]

Final relief was granted in so far as the court ordered the respondent to remove the posting on her Facebook wall.

Even though you feel that your partner has wronged you it is wise to refrain from venting your frustrations on social media or any other public platform pending the finalisation of your divorce action or even subsequent to the finalisation thereof (even if your spouse cannot see your posts).  This behaviour may have an impact on your suitability to claim primary care of minor children and might be considered as alienating the minor children from your spouse.  Your spouse’s attorney might use this against you in the divorce proceedings.

[1] M v B (10175/2013) [2014] ZAKZPHC 49; 2015 (1) SA 270 (KZP) (10 September 2014)

[2] H v W [2013] 2 ALL SA 218 (GSJ)

Prescription

PRESCRIPTION

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What is prescription?

  1. Prescription is when a debt (for example: an obligation to pay an amount of money) is extinguished after a certain period of time.
  2. The Prescription Act says that contractual and delictual debts extinguish after three years from the date when it became payable (due).
  3. Prescription periods may, in certain circumstances, be delayed or interrupted.

 

What are the consequences of a debt that has prescribed?

  • A person who is indebted (“debtor”) to another person (“creditor”) will not be liable to pay such debt after a certain period of time has passed.
  • This means that the creditor may not institute legal action against the debtor for such a debt. If legal action has been instituted and a special plea of prescription has been raised, the creditor will not be successful with a claim.

 

Why do I need to be aware of prescription?

 

  • South African courts do not take note of prescription out of its own accord.

 

  • Therefore the duty falls on you and/or your attorneys of record to file a special plea of prescription.

 

  • If a summons has been served on a debtor, one must always take note of when (date and year) the amount/debt was due and proceed to make the necessary calculations.

 

When does prescription commence?

  • As soon as the debt is due. A debt is due once the creditor can identify the debtor and the facts from which the debt arose.
  • A debt, which does not arise from contract, shall not be deemed to be due, until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises (example: delictual damages to a creditor).

 

When will the prescription period be delayed?

A prescription period is delayed if one of the following restrictions apply:

  • creditor is a minor, insane, or under curatorship;
  • debtor is outside South Africa;
  • creditor and the debtor are married to each other;
  • creditor and the debtor are partners and the debt arose from a partnership agreement;
  • debtor is a member of the creditor, being a governing body an organisation or business;
  • debt is the object of a dispute in an arbitration; or
  • executor of a deceased estate has not yet been appointed.

 

When will a prescription period be interrupted?

The running of prescription is interrupted by:

  • an acknowledgment of debt by a debtor, for example, if a debtor pays part of his/her debt to the creditor before prescription;

or

  • a summons served by the creditor on the debtor in order to claim payment of the debt due.
Prescription period before debt / claim is extinguished

Description of Claim / Debt

30 Years Any debt secured by a mortgage bond.

Debt in respect of a judgment delivered by a court.

6 years Debt relating to a bill of exchange, a negotiable instrument (for example, a cheque or promissory note) or a notarial contract.
3 years Debt arising from delict or contract, or any other liability.
30 years A person shall become the owner of a thing, such as piece of land, after possession for an uninterrupted period of 30 years.

 

Contempt of Court

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You have a divorce order directing your ex-husband to transfer certain shares which he holds in a private company, within a certain time from date of the order, into your name. He fails to do so. What are your rights?

A warrant of execution is not the appropriate remedy because there is no monetary amount specified in respect of the shares.

The only remedy remaining is a contempt of court application.

In order to succeed in civil contempt proceedings an Applicant has to prove the terms of the order, knowledge of these terms by the Respondent, and a failure by the Respondent to comply with the terms of the order. Upon proof of these requirements the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities.[1]

Cameron JA in the matter of Fakie NO v CC IT Systems (Pty) Ltd [2] summed up the development of the common law in contempt proceedings and stated as follows:

“Once the Applicant proves the three requisites of contempt, namely, the order; service or notice; non – compliance and willfulness and mala fides beyond a reasonable doubt; the Respondent bears an evidential burden in relation to willfulness and mala fides that establishes a reasonable doubt as to whether non – compliance was willful and mala fide.” (my underlining)

 

And as follows:

  • The civil contempt procedure is a valuable and important mechanism for securing compliance with Court orders, and survives constitutional scrutiny in the dorm of a motion court application adapted to constitutional requirements;

 

  • the Respondent in such proceedings is not an “accused person”, but is entitled to analogous protections as are appropriate to motion proceedings;

 

  • In particular, the Applicant must prove the requisites of contempt (the order; service or notice, non – compliance and willfulness and mala fides) beyond reasonable doubt;

 

  • But, once the Applicant has proved the order, service or notice, and non – compliance, the Respondent bears an evidential burden in relation to willfulness and mala fides: Should the Respondent fail to advance evidence that establishes a reasonable doubt as to whether the non – compliance was willful and mala fide, contempt will have been established beyond a reasonable doubt;

 

  • A declaratory and other appropriate remedies remain available to a civil Applicant on proof on a balance of probabilities.”

 

Although contempt is part of a broader offence, it can take on many forms, even though its essence lies in violating the dignity, repute, or authority of the Court. Traditionally, contempt of court has been divided into two categories according to whether the contempt is criminal or civil in nature. These types of contempt are distinguished on the basis of the conduct of the person in contempt.

The relief in civil contempt proceedings can take on a variety of forms other than criminal sanctions, such as declaratory orders, mandamus, and structural interdicts. All of these remedies play an important part in the enforcement of court orders in civil contempt proceedings. Their objective is to compel parties to comply with a court order.  In some instances, the disregard of a court order may justify committal, as a sanction for past non-compliance. This is necessary because breaching a court order, willfully and with mala fides, undermines the authority of the courts and thereby adversely affects the broader public interest.

 

[1] Du Plessis v Du Plessis 1972 (4) SA 216 (O) at 220A-D

[2] [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 42.

SPOLIATION

20180101-taking-the-law-into-your-own-hands

“Two angry women believe the law was on their side when they removed a radio station transmitter leaving Radio Houtstok FM listeners in silence. What drove these women to take such drastic action? CarteBlanche.”

 

The question is whether the two women took the law into their own hands.

 

The mandament van spolie is a possessory remedy which protects the possession of a party. It is based on the rationale that no person is allowed to take the law into his own hands and to unlawfully dispossess another of possession of property. If this occurs a court will summarily restore the status quo ante without enquiring into or investigating the merits of the dispute to determine a party’s right to ownership.

Even an unlawful possessor – a fraud, a thief or a robber is entitled to the mandament’s protection. The court will therefore remedy illicit deprivation before determining the competing claims to the object or property.

The two requirements for a spoliation order are firstly proof that the applicant was in peaceful and undisturbed possession of the spoliated item and secondly that the applicant was wrongfully deprived of its possession. The cause for possession is irrelevant and therefore even a thief’s possession is protected. Possession is not possession in the strict juridical sense and it is sufficient to proof that the possession was with the intention of securing some benefit for the Applicant. The fact that possession is wrongful or illegal is irrelevant, as that would go to the merits of the dispute.

Generally the Respondent is not entitled to challenge the applicant’s title to the spoliated item, because good title is irrelevant. There are however a qualification to the aforesaid requirements. If an applicant claims a substantive right to possession of the spoliated thing additional to the possession he in effect forces an investigation of the issues relevant to the further claim.  In the latter instance the Respondent may answer such additional claim of right and may demonstrate, if he can, that Applicant does not have the right to possession which it claims.  [1]

A spoliation application is brought ex parte which means that no notice is given to Respondent. The court will then grant a Rule Nisi calling on Respondent to show cause on a date determined by the court why the Rule Nisi should not be made final.

When orders are sought ex parte an applicant should observe the obligation of utmost good faith and should not make misstatements of any nature.  If a court finds that such misstatements were made with a fraudulent motive or mala fide it may even discharge a rule nisi obtained ex parte based on the applicant’s failure to present material facts or his serious misstatements of material facts.[2]

One of the defences open to a Respondent facing a Rule Nisi is that it is impossible to return the item because it has been destroyed, irreparably damaged or lost or/and when a third party has acquired possession of the article. The courts will not engage in the futile exercise of granting an order which cannot be carried out.[3] Where a defence of impossibility is raised the court may however order restoration if the return is impossible.

 

[1] Street Pole Ads Durban (Pty) Ltd v Ethekwini Municipality [2008] 3 ALL SA 182 (SCA)

[2] Tyjaderlin Properties CC v Malan and Another (1487/2015) [2016] ZAFSHC 5

[3] Administrator of Cape of Good Hope and Another v Ntshwaqela and Others (165/8) ZASCA 167; [1990] 2 ALL SA 34 (A) (30 November 1989)

 

Road Accident Fund

asphalt-clouds-fields-56832

 

  • What is the Road Accident Fund?

The Road Accident Fund is a public entity set up to compensate persons seriously injured in motor vehicle accidents for which they are not to blame.
In terms of section 3 of the Road Accident Fund 1996 (Act No 56 of 1996);
the object of the Road Accident Fund shall be the payment of the compensation in accordance with this Act for loss or damage wrongfully caused by the driving of a motor vehicle.”

  • Who may claim?

The following are entitled to make a claim:

  • A person who sustained a bodily injury in the accident (except a driver who was the sole cause of the accident);
  • A dependent of a deceased breadwinner;
  • A close relative of the deceased who paid for the funeral; and
  • A claimant under the age of 18 years – who must be assisted by a parent, legal guardian or a legal representative.

  • What can you claim?
    • The injured, or the supplier, may claim the costs of accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to the injured;
    • Where emergency medical treatment is provided to the injured the Fund’s liability to compensate the injured or the supplier, as the case may be, is determined in accordance with a prescribed tariff; and
    • Where the treatment provided is of a non-emergency nature, the Fund will compensate reasonable and necessary costs of the treatment to the injured, or to the supplier, as the case may be.

  • What is the time period in which to submit a claim?
    • Identified claims (where the identity of the driver or owner of the guilty motor vehicle is known) must be lodged with the Fund within 3 years from the date of the accident and must be finalised within 5 years from the date of accident;
    • Hit and Run claims (where the identity of the driver or owner of the guilty motor vehicle is unknown) must be lodged with the Fund within 2 years from the date of the accident and must be finalised within 5 years from the date of accident;
    • Claims in terms of an undertaking certificate issued in terms of section 17(4)(a)(ii) of the Act must be lodged and finalised within 5 years from the date on which services were rendered to the injured.
  • How to claim:

All accounts must be fully specified and must indicate exactly what service/treatment has been received. It must also reflect the date of the service or treatment, as well as the name and physical address of the service provider. It is not enough to only submit a receipt as proof that you have incurred an expense.  Make sure that the goods/service reflected in the account has been received.  Once satisfied, sign each account, that has been submitted to the Fund for reimbursement.

Write the Road Accident Fund claim reference number and/or Link number as quoted in the undertaking document, clearly on each claim.

Each road accident claim is different, and it can be difficult for someone without the appropriate legal experience to determine exactly what to include in a claim. It is therefore advised to make use of the services of an experienced attorney.

At Lötter Attorneys we will be able to guide you through the RAF claims process – from reporting the accident and gathering the necessary documentation, to submitting the claim within the prescribed time limits and negotiating with the RAF on your behalf.

Contact us today

PARENTING COORDINATOR

parent_coordinator

In TC v SC 2018 (4) SA 530 (WCC), a recent Western Cape High Court case, decided by Acting Justice Davis, the Judge noted the sad reality in divorce cases that conflict generated by the breakdown of the marital relationship often spills over into the parenting relationship. The children often become the subject of disputes about care and contact and other parenting issues.

 

The appointment of a parenting coordinator has become a regular feature of divorce litigation where the interests of children are in issue. To manage the negative impact on children, the court appoints a parenting coordinator to provide a non-adversarial dispute resolution service. The persons appointed are often child psychologists or family law practitioners, who assist to resolve child-related disputes in an expeditious and child-focused manner, to minimise the risks that the parental conflict hold for children.

 

In South Africa there is currently no statute or rule of court governing the appointment of a parenting coordinator, but a practice has developed in the Western Cape which entails that the divorcing parents consent to the appointment of a parenting coordinator to mediate parenting disputes. The court also authorises the coordinator to give directives on the child-related issues in dispute, if the mediation is not successful. These directives are binding, unless it is set aside by the court.

 

The main issue in TC v SC was whether the High Court has the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes, even if one of the parents objects.

 

Acting Justice Davis stated that the court-assigned role for the parenting coordinator can be crafted in a manner which will not constitute an unlawful delegation of the Court’s decision-making authority. She proposed that the following limitations be placed on the powers of a parenting coordinator:

 

  1. Agreement between the parties must have been reached and set out in a parenting plan, whether interim or final, and must have been made an order of court. The parenting coordinator’s role must be limited to ensuring implementation of or compliance with the existing court order. This eliminates the risk of an improper delegation of judicial decision-making power.
  2. The parenting coordinator’s decision-making power must be confined to ancillary rulings that may be necessary to implement the court order, without altering the substance of the court order or involving a permanent change to any of the rights and obligations defined in the court order, so ensuring that the parenting coordinator does not trespass on the Court’s exclusive jurisdiction.
  3. All decisions made by the parenting coordinator must be subject to comprehensive judicial oversight in the form of a full reconsideration of the decision, accordingly suspending the finality of the decision and giving the Court the authority to alter the decision.

 

Acting Justice Davis made it clear that in the absence of the consent of the parties to the appointment of a coordinator and the terms of their appointment, a court should not impose a coordinator on parties without conducting the necessary inquiries and making findings regarding the following:

  1. the welfare of the child is at risk from exposure to chronic parental conflict based on evidence of the parents’ inability or unwillingness to co-parent peacefully;
  2. mediation has been attempted and was unsuccessful, or is inappropriate in the particular case;
  3. the person proposed for appointment as the coordinator is suitably qualified and experienced to fulfil the role of coordinator;
  4. the fees charged by the proposed coordinator are fair and reasonable in the light of their qualifications and experience, that the parents can afford to pay for the services of the coordinator, and that at least one of the parents agrees to pay for the services of the coordinator.

 

In terms of this judgment parenting coordinators may only issue directives directly implementing the terms of a parenting plan which has been made an order of court, without altering its substance or changing the rights and obligations set out in the Court Order. The practical impact of this ruling is that the parenting coordinator’s ability to manage high-conflict divorce situations is limited and, for example, he/she will not be able to amend the parenting plan in the event of a change in circumstances which impact on the maintenance to be paid for the minor child or the care and contact arrangements or other safety measures designed to serve the best interest of a minor child. In view of the significant role played by parenting coordinators in divorce matters, these limitations and the Court’s formulation of the powers of the parenting coordinator is of great importance.

 

INTERIM RELIEF – RULE 43 APPLICATIONS

prentjie

Rule 43 Applications – Interim Relief

Divorce proceedings can sometime takes months and/or years to finalise and the law provides a mechanism that can be used to assist spouses during a divorce to provide for much needed interim relief until the divorce is finalised. An extremely acrimonious divorce can take years to finalise and spouses need to be safeguarded during the divorce process.

 

A Rule 43 in the High Court (known as a Rule 58 in the Magistrate’s court) provides an interim measure to help an Applicant fairly quickly.

 

WHAT is a Rule 43/58?

A Rule 43/58 can be used for one or more of the following:

  • maintenance towards the wife and/or children;
  • interim care or contact with the child;
  • enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs;
  • interim contribution towards the costs of the divorce and legal fees;

WHEN?

 

In terms of the equality provisions in the Constitution, a divorcing wife/husband who has no income is entitled to a contribution to her/his legal costs to ensure she/he has an equal opportunity to defend her/his case. Depending on the circumstances, such an application can be brought:

(i) before issuing of the summons;

(ii) simultaneously with the issuing of the summons; or

(iii) after a notice of intention to defend is received.

 

NB:

An applicant is entitled to interim relief depending on the living standards of the parties. In applications of this nature, an applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.

 

PROCEDURE:

The spouse seeking an interim relief order (the applicant) will file a notice and affidavit (referred to as a founding affidavit) with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief from the spouse against whom relief is sought (the respondent).

 

RESPONDENT:

It is up to the respondent to provide the court with evidence that disputes the applicant’s claim, as the case may be. If the respondent does not do so, the court is entitled to infer from the evidence at hand that he/she can afford to pay the interim relief.

 

CONCLUSION

The spirit of rule 43/58 demands that the applicant provide a very brief, succinct statement of the reasons why he/she is asking for the relief claimed and that the respondent supply an equally succinct reply. The court must then to do its best to arrive expeditiously at a decision. At the hearing of the rule 43/58 application, no oral evidence is given and the application is argued based on the documentation before the court. The judge or magistrate will make an order as he/she deems appropriate under the circumstances.