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October 05, 2017

Adoption Advice – can I adopt my friend’s baby?

A client asked how she goes about adopting her friend’s child, soon to be born. The friend wishes to give up her baby for adoption.

The biological parents would need to receive counselling from an accredited adoption social worker to look at all the options available to them when planning the future for their unborn child.

Should they decide on adoption, they will be assisted to sign consent for the baby’s adoption, in a Children’s Court.

The biological parents would have 60 days after signing the adoption consent to change their minds about the adoption.

Its best that during this period, the baby is placed in a temporary safe care facility.

As a prospective adoptive parent, you would need to go through a screening process with an accredited adoption agency or with an accredited adoption social worker in private practice which involves attending an orientation meeting, interviews with a social worker, a full medical with a doctor on our panel, a psychological assessment, a marriage assessment (if married or in a committed relationship), a home visit, police clearance and clearance from the Child Protection Register.  You would also be required to attend a full day’s training and preparation group.

The screening can take between 5-6 months. There is a charge for all professional services and you would be responsible for paying the doctor and psychologist directly.

The baby would remain in temporary safe care until the prospective adopters have completed the screening process and the baby has become adoptable.

For more on this topic, go here: https://goo.gl/e2AHvJ

September 27, 2017

Sectional title owners – who is responsible for excess payments on insurance claims?

Owners in sectional title schemes believe – incorrectly – that because the body corporate insures the common property it must pay any insurance excesses (e.g. for a burst geyser).
In fact, the Sectional Title Act provides that the owner in a sectional title scheme is responsible for all excess payments on insurance claims – unless the body corporate has passed a special resolution that it will cover these, in certain special cases.
Prescribed Management Rule 29 (1) requires the trustees to take reasonable steps to insure the buildings and all improvements to the common property to the full replacement value and must negotiate excess amounts, premiums, cover, and insurance rates on behalf of the body corporate.
The most common insurance claims relate to damage caused by burst geysers and the problems they cause. Insurance companies often negotiate a higher excess amount for such claims, to reduce the overall insurance premium and claims.
Most insurance companies have call centres set up to deal with the more common claims and on these cases no excess, or a considerably reduced excess, will usually be payable, provided the centre is contacted quickly and allowed to send one of their preferred suppliers to handle the work. Quick action by the owner can save unnecessary damage to the unit (and to other units).

September 14, 2017

Landlord harassing a tenant?

What rights do I have when a landlord victimizes me as a tenant?

You should take the matter up with the Rental Housing Tribunal, who offer their services free of charge. Click here to find out more about your rights as a tenant, and residential leases: https://goo.gl/QkPd8f

Provincial Rental Housing Tribunal contact list:
Gauteng – 011 630 5035
Western Cape – 021 483 4190
KwaZulu Natal – 031 336 5300/5222
North West – 018 387 6057
Limpopo – 015 294 2241
Mpumalanga – 013 7666 200
Northern Cape – 053 830 9444 / 9544

September 09, 2017

Does my mom’s power of attorney endure if she can’t manage her affairs?


A person has full contractual capacity if he or she can conclude a legally binding contract. A party’s contractual capacity may be affected by mental illness, intellectual disability, physical disability, head injury, an extended period of unconsciousness, stroke or extreme old age, etc. 
In some countries, a person can make an Enduring Power of Attorney for his or her property or personal care and welfare. The Enduring Power of Attorney for property will take effect at any time or only if the person becomes mentally impaired. The Enduring Power of Attorney for personal care and welfare will only begin when he or she is no longer capable of making personal decisions to deal with their own affairs, due to any of the above reasons. 
In South African law, there is no such concept. If you execute a special (for limited purposes) or a general (an all-encompassing) power of attorney in favour of someone (called your agent) the agent’s authority to act under that power of attorney ends on your death, insolvency or incapacity (where you are unable to make rational decisions or are incapable of managing your own affairs).
So, if the power of attorney ends, what’s next?
If the value of your mom’s estate exceeds R 200,000 and his annual income is more than        R 24,000, then we must apply to court for the appointment of a curator bonis or curator ad personam, to manage her affairs. This is a hugely expensive business.
The term “bonis” means “goods” (as in assets) in Latin. A curator bonis is concerned only with the financial affairs of the person. The curator ad personam (often the same person) is a person appointed by a court to manage the day to day personal affairs of a person unable to do so because of mental or physical incapacity.  The term “ad personam” means “for the person” in Latin. 
If her estate and income, is less than R 200,000 and her annual income is below R 24,000, we can apply to the Master of the High Court in terms of the Mental Health Care Act, firstly to declare that your mom is mentally ill, and then for the appointment of administrator (usually an attorney) to care for and administer the property of the mentally ill person. This is a simpler and cheaper process.

September 02, 2017

Can new owners be held liable for historic municipal debt on their property?

In the case of Jordaan v Tshwane municipality, the Constitutional court handed down a judgment on 29 August 2017, dealing with the constitutional validity of S118(3) of the Local Government Municipal Systems Act, which provided that “an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property”.
The Constitutional Court had to decide if this provision allows a municipality to claim the debts of a former owner from the new owner, and if so, whether this provision was constitutional.
In this case, the applicants approached the High Court (and won) by alleging that it was unlawful for a municipality to suspend municipal services or refuse to conclude a consumer services agreement for municipal services until the historical debts relating to the property had been cleared.

The municipality appealed to the Constitutional Court and lost. The court found that:

·         while a municipality has the constitutional obligation to collect revenue and pursue debtors, it can only claim the money from the actual debtor (previous owner) and cannot claim the historic debt from the new owners;

·         holding the new owners liable for the debt was an arbitrary deprivation of property.

Presumably, this outcome will open the floodgates to many actions against the municipalities that recovered historic debt from the new owners.