Borgaansoek na-ure

Borgaansoek na-ure

Nauurse borgtog: Wat is my regte?

ILAW

SKAKEL GEORGE KLEYNHANS 076 741 6666
24/7

Hein Gonzales is bestuurder van risiko en ondersteuning by AfriForum se afdeling vir gemeenskapsveiligheid.Foto: Verskaf.

Deur Hein Gonzales

Luidens art 50(1)(b) van die Strafprosesregwet word bepaal ʼn beskuldigde wat in aanhouding is ná inhegtenisneming moet so spoedig moontlik ingelig word van sy reg om aansoek te doen om borgtog en vrylating. Laasgenoemde is nie ʼn keuse nie, maar ʼn direkte bevel en opdrag vir uitvoering deur SAPD.

Inhegtenisneming en die gepaardgaande gevangesetting op ʼn Vrydagaand is nie die beste manier om ʼn naweek af te skop nie. Daar is dikwels verwarring oor nauurse borgtog wat buite die hof toegestaan kan word, en aan die ander kant borgtog toegestaan deur ʼn hof. Deel 1 van hierdie bespreking handel oor nauurse borgtog, waarna Deel 2 en 3, wat in die komende weke op Maroela geplaas sal word, gaan handel oor borgtog wat toegestaan word deur ʼn hof.

Die vertrekpunt in hierdie proses gaan wees om vas te stel op welke klagte jy in hegtenis geneem en aangekla is. Laasgenoemde gaan die bepalende faktor wees of jy in aanmerking sal kom vir nauurse borgtog, al dan nie. Die Strafprosesregwet, wet 51 van 1977 (hierna genoem die “Wet”), het verskeie skedules waarin die betrokke misdrywe verdeel word en borgtog word dienooreenkomstig hierdie skedules toegestaan. Gaan lees gerus die skedules by Justice.gov.za en maak seker jy weet wat jou regte is.

Waar begin ons?

Borgtog toegestaan deur SAPD

Kragtens art 59 van die Wet kan borgtog toegestaan word aan jou as beskuldigde voor jou eerste verskyning in die hof indien jy aangekla word van ʼn misdryf wat nie in Deel II en Deel III van Skedule 2 val nie. Borgtog kan slegs deur ʼn lid van SAPD met rang van onderoffisier of hoër rang toegestaan word, op voorwaarde dat daar oorlegpleging met die ondersoekbeampte moet wees oor die meriete. By die oorweging van die borgtogaansoek moet die SAPD-beampte billikheid aan die dag lê deur oorweging van alle tersaaklike feite. Indien die SAPD-beampte kwaadwillig die borgtog weier of weier om sy diskresie uit te oefen, kan dit lei tot siviele eise teen die betrokke beampte.

Faktore wat oorweeg moet word, is of jy ʼn vaste adres het en of jy jou verhoor sal bywoon sonder om te vlug.

Hoe gaan die proses lyk?

  • Jy word in hegtenis geneem en tree in verbinding met jou prokureur kragtens jou grondwetlike reg soos verskans in art 35 van die Grondwet.
  • Jou prokureur daag op by die polisiestasie en gesels met die ondersoekbeampte en stel vas wat die aanklag is.
  • Jou prokureur sal dan met die SAPD-beampte en ondersoekbeampte gesels en onderhandel vir borgtog indien dit ʼn misdryf is wat nie in Deel II en Deel III van Skedule 2 val nie.
  • Borgtog word vasgestel deur SAPD.
  • Jy betaal die borgtogbedrag en word vrygelaat.

Nadat hierdie borgtog toegestaan is, sal jy die volgende oggend in die hof moet verskyn op die aanklagte teen jou. Die SAPD-beampte sal vir jou ʼn J398-borgtogakte oorhandig wat al die nodige inligting vervat soos hofdatum, tyd, plek en klagte teen jou.

Voorbeeld: Daar breek ʼn woordewisseling uit tussen jou en die karwag by ʼn parkeerterrein oor ʼn fooi. Die karwag val jou aan uit woede en jy weer die aanval af deur hom te slaan ter selfverdediging. Die karwag gaan dien kwaadwillig ʼn klagte van aanranding teen jou in waarna jy in hegtenis geneem word. Kan die polisie vir jou borgtog toestaan? Ja, jy kan borgtog toegestaan word deur SAPD aangesien dit nie ʼn misdryf is wat val binne Deel II of Deel III van Skedule 2 nie.

Borgtog toegestaan deur ʼn staatsaanklaer

Kragtens art 59A van die Wet kan ʼn staatsaanklaer vir jou as beskuldigde borgtog toestaan voor jou eerste verskyning in die hof, op voorwaarde dat jy aangekla is van ʼn misdryf soos verskans in skedule 7 van die Wet. Hierdie soort borgtog kan slegs verleen word deur ʼn staatsaanklaer wat daartoe gemagtig is deur die direkteur van openbare vervolging, asook ná oorlegpleging met die betrokke ondersoekbeampte. Die staatsaanklaer kan ook sekere voorwaardes oplê ten opsigte van die verlening van borgtog soos dat jy geen kontak mag hê met getuies nie en/of jou elke dag aanmeld by die plaaslike polisiestasie, of selfs moet aanmeld vir ʼn uitkenningsparade.

Hoe gaan die proses lyk?

  • Jy word in hegtenis geneem en tree in verbinding met jou prokureur kragtens jou grondwetlike reg soos verskans in art 35 van die Grondwet.
  • Jou prokureur daag op by die polisiestasie en gesels met die ondersoekbeampte en/of inhegtenisnemende beampte en stel vas wat die aanklag is.
  • Jou prokureur nader die nauurse staatsaanklaer aan diens en versoek hom om na die polisiekantoor te kom vir onderhandelings.
  • Jou prokureur sal dan met die SAPD-beampte, ondersoekbeampte en staatsaanklaer gesels en onderhandel vir borgtog indien die misdryf binne skedule 7 van die Wet val.
  • Borgtog word vasgestel deur die staatsaanklaer.
  • Jy betaal die borgtogbedrag en word vrygelaat.

Hierdie soort borgtog kan toegestaan word onderhewig aan die volgende voorwaardes:

  • Hierdie soort borgtog kan slegs verleen word voor jou eerste hofverskyning die volgende dag.
  • Hierdie soort borgtog is slegs van krag tot jou eerste hofverskyning, waarna die hof kan besluit om die borgtog te verleng, wysig, besluit om die aansoek om borgtog te heroorweeg of selfs ʼn nuwe aansoek kragtens art 60 van die Wet aan te hoor.

Voorbeeld: Jy is in ʼn motorongeluk betrokke waartydens een persoon oorlede is. Die staat beweer dat jy nalatig was en jy word aangekla van strafbare manslag. Kan ʼn staatsaanklaer vir jou borgtog toestaan? Ja, aangesien die misdryf binne skedule 7 van die Wet val.

Wat as SAPD en die staatsaanklaer nie borgtog kan of wil toestaan nie?

Indien jy nie binne die bestek van die raamwerk hierbo val nie, sal jou aangeleentheid na die hof verwys word vir ʼn formele borgtogaansoek kragtens art 60 van die Wet en wel binne 48 uur ná jou inhegtenisneming. Hierdie soort borgtog sal in Deel 2 van hierdie reeks hanteer word.

Die ondersoekbeampte en staatsaanklaer kan moontlik borgtog weier op die volgende gronde:

  • Daar is vorige veroordelings en skuldigbevindings van ander misdrywe en/of van dieselfde misdrywe.
  • Daar is hangende sake van dieselfde soort en/of ander misdrywe.
  • Daar bestaan kommer dat jy geen vaste adres het nie en dus ʼn vlugrisiko is.
  • Daar bestaan kommer dat jy jou heel moontlik kan inmeng in die ondersoek en/of getuies.
  • Daar is goeie gronde dat jy ʼn gevaar vir die publiek en/of klaer inhou.

Jou vier wenke vir nauurse borgtog

  • Maak seker dat jy bewus is van jou regte kragtens wetgewing en die Grondwet.
  • Tree altyd binne die raamwerk van wetgewing op (geen cowboys!).
  • Moet nooit wetgewing probeer omseil nie, maar verseker dat jy standpunt inneem en verseker dat geregtigheid geskied.
  • Met sekere regte kom daar ook verantwoordelikhede. Verseker die sinergie tussen die twee aangesien hulle in wisselwerking is.

Vir nog veiligheidswenke gaan kyk gerus na AfriForum se jongste video oor jou grondwetlike reg om jouself en jou familie te beskerm tydens ʼn aanval op jouself, meer spesifiek jou regte en verantwoordelikhede.

Liquidation

Liquidation or business rescue – what is the difference?
09 August 2017
 

“My family company has been operating successfully for nearly 20 years. Over time I’ve also managed to get a few investors into the business. The last year however has been tough and we are struggling to make ends meet. I feel its decision time about the future of the business, but was wondering whether liquidation is the best route or must I rather look at business rescue? What is the difference between these two options?”

In difficult economic times, many companies are having to come to terms with making tough financial decisions. Filing for liquidation, has in the past been a route considered by many companies. The  Companies Act 71 of 2008 (“Companies Act”), introduced another intervention mechanism, namely business rescue, as an option to be considered by a company that is in financial distress.

In terms of the Companies Act, a company will be considered to be in financial distress, if the company is not in a position to reasonably pay all of its debts as they become due and payable within the immediately ensuing six months or it appears reasonably likely that the company will become insolvent in the immediately ensuing six months. Once it has been established that a company is in financial distress, it must then be considered whether to file for liquidation or undergo business rescue.

To make this decision, the objective of each option must be considered as well as the process to be followed by a company.

With liquidation the objective is to dispose of the assets of the company and apply the proceeds thereof to pay the creditors of the company in terms of a legal order of preference. The purpose of business rescue on the other hand is to rehabilitate the financially distressed company and to rescue it by means of a plan that will help the company to turn its financial distressed position around and trade on a solvent basis again. Liquidation and business rescue proceedings can be launched either voluntarily or by way of an application to court by creditors and affected parties.

To initiate the voluntary liquidation process a company must decide on a date for the institution of liquidation proceedings. As from this date the company will not be allowed to incur any further debt but can continue trading. Any income then derived will go into the insolvent estate, and may not be used by the company. Once the date has been selected the shareholders of the company must resolve, by special resolution, to place the company under liquidation and an accompanying court application has to be submitted to the High Court. The court will first issue a provisional liquidation order before issuing the final order and notice must be given to all creditors before the final liquidation order is granted. Once the provisional liquidation order is granted no creditor may institute any legal action against the company and any legal action instituted will be suspended. The Master of the High court will appoint a liquidator who will determine the assets of the company, hold meetings with creditors, collect outstanding debt, sell assets, pay creditors and finalise the estate, after which the matter will be closed.

To initiate business rescue proceedings voluntarily the board of the company may resolve to place the company under business rescue if the company is financially distressed and there appears to be a reasonable prospect of rescuing the company. The resolution may not be adopted by the board if liquidation proceedings have been initiated by or against the company and will have no force or effect until it has been filed with the Companies and Intellectual Property Commission (“CIPC”). The company must notify all its creditors and appoint a business rescue practitioner (“BRP”) within five days after the resolution has been adopted and filed with CIPC. During business rescue proceedings no legal action including enforcement action may be instituted against the company, except with written consent thereto by the BRP or with leave of a court. The BRP is responsible for assessing the affairs of the company, holding meetings with creditors, other affected persons and management of the company and compiling a business rescue plan which needs to be voted on and accepted by all affected persons. The business rescue plan must indicate amongst others the probable dividends creditors would have received if the company was placed under liquidation and must prove that under business rescue the company is able to generate a better monetary return for its creditors than in the event of liquidation. The plan must further set out the advantages of business rescue over liquidation. Once the business rescue plan is adopted it binds the company, creditors and holders of any securities against the company.

Business rescue compared to liquidation provides for the company’s debt to be managed and contracts restructured and reorganized in order for the company to continue to trade on a solvent basis rather than selling off all of the company’s assets and the company being shut down as in the case of liquidation. If it does happen that business rescue is unsuccessful, the BRP may apply to court to have the company liquidated. The business rescue process is therefore a last lifeline to try and turn a company around before it has to close its doors when liquidated.

In your case, your views on the potential to rescue the company and the degree of financial distress the company is in, will determine which of these proceedings are the most appropriate route (if any) to be followed. Consider enlisting the help of a legal practitioner to help discuss in more detail the pro’s and con’s of these legal options for your company.

 

municipal debt

municipal debt

According to Section 118(1) of the MSA, a property may not be transferred unless a rates clearance certificate has been issued by the municipality where the property is situated. The certificate must certify that all amounts due to the municipality for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties (“municipal fees”) during the two years preceding the date of application for the certificate have been fully paid. This subsection says nothing about historical arrears which may be older than two years.

According to Section 118(3) an amount due for municipal fees is a charge upon the property and enjoys preference over any mortgage bond registered against the property, thereby creating a security provision in favour of the municipality for the payment of the outstanding debts. No time limit is attached to this provision and it does not matter when the secured debt became due. It can include debts up to 30 years old (for rates, refuse and sewer charges) and 3 years old (for electricity and water), including debts of more than one previous owner, all of which are secured through Section 118(3) in favour of the municipality.

The issue that is the cause of the consternation is where a new (innocent) owner is now held responsible for municipal debts older than two years incurred by previous owners, without any prior knowledge that there is arrear debt and that municipalities may, as in your case, hold the new owner responsible for the arrear debt of someone else. The new owner is caught by surprise, particularly as a rates clearance certificate was issued creating the impression (even if not legally correct) that all debts with the municipality have been settled by the seller.

Our Supreme Court of Appeal has recently confirmed that a rates clearance certificate does not mean that there is no further municipal debt tied to a property. Our courts also confirmed that if the seller or previous seller is unable to pay or cannot be located, the purchaser or new owner will be held liable for these debts, in extreme cases even potentially allowing the municipality to sell the property itself to settle the arrear debts. This right (or hypothec) of the municipality over the property established by Section 118(3) thus survives any form of property transfer without exception.

Based on this court decision, it potentially leaves a new owner vulnerable to the municipality enforcing its rights over the property, even resorting to disconnecting water and electricity to force a new owner to settle arrear municipal debts.

Our courts have not however had occasion to test the constitutionality of Section 118 of the MSA, and in our view there could be constitutional grounds for testing the fairness of the current interpretation of Section 118(3) and the application thereof by municipalities.

We accordingly recommend that should the municipality persist in your case to require settlement of a previous owner’s arrear municipal debts or face disconnection of municipal services, you should approach a legal advisor for assistance.

lawful evictions

lawful evictions
Housing is a vital and primary need for each person. As most of us acquire accommodation by lease or through home loans or even through state housing provided by municipalities, it is important to know your rights and what the correct procedure is for lawful evictions.

With the exclusion of farm land, lawful evictions from residential premises, buildings or structures thereon, which includes any hut, shack, tent or similar structure or any other form of temporary or permanent dwelling or shelter, is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, commonly known as the PIE Act.

Who has a right to evict?

The right to evict under the PIE Act is given to a registered owner of premises or to a person in control of the residential premises in question. Persons in control of residential premises include:

A lawful tenant
The executor administrating the estate which includes the premises
Any other agent acting on the lawful instructions of the owner
Who can be evicted?

People who can be evicted include the following people who remain in occupation of the premises:

Defaulting tenants whose lease agreements are terminated
Defaulting mortgagors whose bonds were cancelled and property sold in execution
Unlawful occupiers and squatters
Any other person who does not have the express consent of the owner or person in lawful control of the premises
What are the special considerations?

When dealing with eviction applications our courts are obliged to give special consideration to the elderly, children, people with disabilities and also households headed by women. All facts and circumstances of such persons must be highlighted to the court for the evaluation of such special considerations.

Lawful eviction procedure:

Step 1 – Eviction notice/demand

An eviction notice or demand serves to warn the occupant of the intended eviction and it usually provides the occupant 30 days to vacate the premises. It also affords parties the opportunity to negotiate settlement terms or terms and timeframes for vacating the premises. This letter may be served by the Sheriff of the Court, by hand at the premises or by registered post.

Step 2 – Court application for eviction

A court application by way of a notice of motion with a supporting affidavit, must be served by the Sheriff on the occupant and on the relevant municipality. This will set out the court appearance date and the dates when the occupant must file their opposing court papers if they intend to oppose the eviction application. The occupant must receive the court application papers at least 14 days before the court date.

Step 3 – Appearance in court for hearing of eviction application

A Court is obliged to consider all relevant facts relating to the eviction application at the appointed dated for hearing the application. Legal representatives of the parties will be afforded an opportunity to present oral and written legal arguments on behalf of each respective party. The Court will then through a Court Order, if the application is succesful, provide the occupant sufficient time to vacate which is ordinarily up to 1 month with a provision that should the occupant fail to vacate in that period, the Sheriff is authorized to remove the occupant and all belongings from the premises at the costs of the occupant.

Step 4 – Forced eviction of occupant by Sheriff

The Sheriff will first serve a copy of the Eviction Court Order on the occupants. The Sheriff will then usually be authorized to forcefully remove the occupants after the vacation date appointed by the court has lapsed. The Sheriff may also be authorized to obtain the assistance of the police where necessary and he may also be authorized to remove the belongings of the occupants including to demolish any erected structures. The Sheriff may take up to 3 weeks to execute the eviction Court Order after making necessary arrangements to evict the occupants.

Conclusion

Lawful evictions can take between 2 to 3 months to be concluded and they can become technical and even costly. A landlord, owner or a person in control who wishes to evict, and a tenant or occupant against whom eviction processes are being commenced, are in both instances advised to seek legal advice from an attorney specialising in evictions to ensure that the eviction process is lawful and carried out correctly. Following the correct lawful eviction procedure minimizes frustration, costs and potential further rental losses and avoids the need for conduct like changing locks, disconnecting utilities and even intimidating conduct, which in itself can result in legal action being taken by unlawful occupants against owners or landlords.

social media

social media

Defamation

“Recently one of my employees posted a number of defamatory comments via her various social media platforms regarding some of her colleagues. I have already addressed the matter with her individually, but would like to prevent issues like this cropping up in the future and also protect my business. Most of my employees are on various social media sites and my business also has various social media accounts. Is there anything I can do?”

The benefits of social media cannot be disputed. The rise of social media has afforded the man on the street a public platform and the opportunity to stay connected and engage with others around the world in ways never anticipated before. An increasing amount of people are utilising social media platforms for both personal and professional purposes. Facebook, Twitter, Instagram, LinkedIn and Google+ have become standard ways in which information is communicated effectively and immediately. This has made many companies realise the need to take their businesses online, both in an effort to keep up with the times and to attract a wider pool of customers by promoting their businesses online, enhancing their brand visibility and using social media to gauge and improve their customer satisfaction.

But careless use of social media has become a prominent topic in the news recently. Despite the many advantages of this new digital age in which social networking has become the norm, the law has yet to develop effective mechanisms to address issues and mitigate the risks involved with the downsides of social media use. It is therefore imperative that businesses and employees remain well versed on the dangers associated with irresponsible social media use and the accompanying reputational harm that may be caused. In the age of social media, where material can go viral in a matter of minutes, it is crucial for employers to set out clear policy guidelines on acceptable social media use and the repercussions of stepping out of line. This is where a social media policy comes in.

A social media policy can be described as a corporate code of conduct which provides clear parameters for what is considered acceptable conduct on social media sites and what behaviour will not be tolerated. Ideally the policy should also highlight the consequences for breaching the company`s social media policy and have effective enforcement mechanisms in place to encourage compliance therewith. This will also help the employer to justify disciplinary action when the employee steps out of line.

Fact is, employers may face brand damage, reputational harm and suffer consequential loss of business from unsavoury posts or comments made on their business accounts or by employees of the business on their personal accounts. The ease by which a thoughtless comment or emotionally-fuelled post can bring an employer into disrepute and destroy client relationships is a reality of social media, and one which may cause irreparable harm if left unchecked. However, employers need to strike a balance between respecting their employee`s privacy and protecting their business interests. A social media policy can therefore be an effective means of managing employees’ conduct by limiting personal social media use during working hours, making sure that employees understand the risks associated with misusing social media and that they know what is expected of them. Such a policy should also clearly define what can be considered as libellous in terms of the company’s image in the general market place, and the consequences of such statements.

In a company`s social media policy, employers should therefore distinguish between, and cover both, employees` personal social media use (during and after work hours) as well as employees` use of social media for business purposes.

It is also important to understand that a company still needs a social media policy notwithstanding the fact that the business might not have its own social media accounts. As the majority of employees are engaging on social media platforms, their actions may cause harm to their employers even when the employer has no social media presence. Employers may be held liable for posts or comments made by employees on their own personal social media pages. For example, in terms of the Employment Equity Act, employers may be held liable for acts of unfair discrimination (which includes harassment) committed by their employees, unless it can be shown that the employer took reasonable steps to prevent contraventions of the aforementioned Act.

Employers should not underestimate the significance of establishing a sound social media policy in our current digital age. Having a social media policy that is applied consistently and communicated to employees will go a long way towards protecting your company`s brand and reputation as well as managing your company`s liability.

in community of property

in community of property

Muslim

“My husband and I were married in community of property many years ago. We now however feel that it would be better for the management of our family and separate business interests if we were rather married out of community of property. Can we change our marriage system to out of community of property?”

Things change. What once seemed appropriate, a few years later may not. Fortunately, our law understands this and allows married couples to change their matrimonial property system at a later stage. But to dissuade flippant changes and to protect creditors, our law demands that a court approve such a change.

The following provides a brief overview of the process to change your matrimonial property system. It should be noted that this process may vary slightly for the different provincial High Courts.

• A notary must draft what is now termed a notarial post-nuptial contract for you containing the change in matrimonial property system you wish to apply to your marriage. This contract will for all intents and purposes have to meet similar requirements as would be necessary for a notarial ante-nuptial contract
• Your attorney will also have to assist you in giving notice to the Registrar of Deeds and your creditors of your proposed change of matrimonial property system. The notice of the proposed change to the Registrar of Deeds must be advertised in the Government Gazette and in two local newspapers in the area where the parties reside at least two weeks prior to the date of the application’s hearing. The notice to the creditors must be given by certified post at least two weeks before the date of the application.
• Your attorney will then have to assist you in lodging an application with the High Court to change your matrimonial property system. In the application the parties must make full disclosure of their financial position and it will have to be shown that –
o There are sound reasons for the change;
o That sufficient notice was given to your creditors.
o That no other person would be prejudiced by the proposed change.
• Should the court approve the change of property system, the court will authorise a notary to sign and execute the notarial post-nuptial contract and register such with the relevant Deeds Office. The result of such registration will be that the matrimonial property system has been changed to that approved by the court and provided for in the notarial post-nuptial contract.

The process to amend your matrimonial property system can take a few months to be completed and can also be costly as it involves an application to court. But it can be done. If you wish to proceed with the change of your matrimonial property system I would advise that you consult an attorney as soon as possible to get the process started.