What is the effect of divorce on a permanent resident permit?

A client asked: What is the effect of divorce on a permanent resident permit when a US citizen is married to a South African citizen and was granted permanent residency and a SA ID document on the basis of the marriage?

Permanent residence under the spousal category is issued in terms of section 26(b) of the Immigration Act of 2002:

“Subject to section 25 and prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

(My emphasis.)

This is read with regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

In practice however, there is no way to comply with this regulation – I have never heard of any Department of Home Affairs regional office that conducts these interviews.

Section 28(b) dealing with withdrawal of permanent residence:

“The Director-General may withdraw a permanent residence permit if its holder has failed to comply with the terms and conditions of his or her permit;”

In terms of section 26(b) there would be no impact on the permanent residence (and subsequent green ID) if the relationship ended more than two years after the permanent residence was issued.  If it ends within the two year period, either party could inform the Department of Home Affairs, but it is usually the South African citizen / initial permanent residence permit holder spouse that the application had been made under, who attends at a regional office to inform immigration inspectorate of the breakdown of the relationship on affidavit.

Inspectorate will then contact the foreign national to appear before them and the information will be forwarded to the office of the Director-General.  As it is at the Director-General’s discretion, there have been cases where the permanent residence was not withdrawn, despite the end of the relationship, e.g. if there are minor children who would benefit from having the foreign national parent to remain in the country.

New Parental Leave Provisions

In terms of recent changes to Basic Conditions of Employment Act (BCEA), from 1 January 2020, the BCEA makes provision for parental leave, adoption leave and commissioning parent leave (surrogacy arrangements).

Parental, adoption and commissioning parental leave will be unpaid but employees can submit claims to the Unemployment Insurance Fund to qualify for payment of these benefits.

Parental leave

In terms of section 25A of the BCEA, an employee, whether male or female, who is a parent of a child is entitled to at least 10 consecutive days of parental leave, which may commence on the day that the employee’s child is born.

This means that in a two-parent household, where the parents are expecting a child, the parent who gives birth will be able to take maternity leave of at least four months and the other parent will be entitled to at least 10 consecutive days parental leave.

Adoption leave

Section 25B gives an employee who is an adoptive parent of a child below the age of two the right to adoption leave of at least 10 consecutive weeks or at least 10 consecutive days of parental leave, from the day the adoption order is granted or the child is placed in the care of a prospective adoptive parent by a competent court, whichever date occurs first.

The one parent can now take at least 10 consecutive weeks’ adoption leave while the other parent will be able to take at least 10 consecutive days parental leave. The adopting parents can elect which partner will take which form of leave.

Commissioning parental leave

In terms of section 25C of the BCEA, employees who are commissioning parents in a surrogate motherhood agreement are entitled to either commissioning parental leave of at least 10 consecutive weeks or parental leave of at least 10 consecutive days. The commissioning parents can elect which of the parents will take which leave.

Family responsibility leave

Family responsibility leave provisions (save for leave when a child is born) remain intact and employees may take family responsibility leave in instances where the employee’s child is sick or in the event of a death in the family.

Change your employee contracts

In light of these changes to the law, employers are encouraged to review their outdated policies and employee contracts in order to ensure that they remain compliant with recent labour law amendments.

Bregman Moodley Attorneys can assist.

Dog Bites – what are your rights?

When can you claim damages for patrimonial loss (expressed in money) from a dog owner if his dog bites you and injures you?

Two Latin principals apply, the actio de pauperie (that refers to the legal remedy that can be brought against the owner of a domesticated animal that has caused damage when it was acting contrary to the nature of its species - that is, from ‘inward excitement or vice’ and the actio legis aquiliae (an action used to claim for financial loss).

Both special damages (which may include, for example, damage to property and future medical expenses), as well as general damages (which may include pain and suffering, loss of amenities of life, disability and disfigurement) may be claimed in terms of the actio de pauperie. A person who has been bitten by a dog is entitled to damages not only for the direct injury and pain, but also for subsequent physical disorders occasioned by the nervous shock.

As a general principle, where a person has assumed control over a potentially dangerous animal which may cause harm unless preventative measures are taken, she is under a legal duty to act to protect third parties, and must take steps to protect others against harm flowing from the conduct of the dog.  If she fails to do so, she bears the sole responsibility for the damage caused by the animal.

What do you have to show to a court?

You must prove that she owned the dog; that it was under her control; that it acted against its nature (referred to as contra naturam sui generis in Latin) and that you (the victim) were lawfully present at the location where the damage was inflicted and you were injured.

The actio de pauperie imposes a strict liability on the dog owner (i.e. if you sue, you don’t normally have to prove that the owner was at fault (that he acted intentionally or negligently) and you can rely, in the alternative, on the actio legis aquiliae to prove negligence. You must prove that the dog attacked and bit you without any apparent cause.

You will need to prove the requirements set out in the ‘reasonable person test’ that Mr Average Citizen in the position of the defendant would  foresee the possibility of his or her conduct causing injury to another or to the property of another and leading to subsequent patrimonial loss; and must take reasonable steps to guard against this occurrence.

The following defences may be raised by a defendant against a pauperian action.

You knew the dog was vicious but chose to place yourself in a dangerous situation, willingly; you were on the premises unlawfully (for example, an intruder or a thief), or you provoked the dog. To succeed, you must show the court that the victim knew of the risk of sustaining injury and voluntarily accepted such risk.

Take reasonable steps to protect yourself from claims

Rather than rely on any possible defences, consider taking out personal liability insurance to cover any claims from the victim of a dog bits.

What to do after an accident

What are your duties after a crash? What are your rights if you are injured or your car is damaged?

Your rights and obligations after a collision

If you are involved in or contribute to an accident on a public road in which another person is killed or injured or suffers damages in respect of any property or animal, in terms of the Road Traffic Ordinances there are clear duties imposed on you. Here is what you should do:

1.     Stop your vehicle immediately. Of course, you do not need to stop at an accident if, for example, you hit a tree and only damage your own car or injure yourself. There is a legal and, indeed, a moral obligation on you to report a collision to your nearest police station if you hit a lamp standard or say a stationary vehicle and the accident is not witnessed.

2.     Check the nature and extent of any injury to another person.

3.     If the person has been hurt, do all you can to help by administering first aid, (if you know how), summons the police and, if necessary, an ambulance. If you know nothing about first aid, please do not try to render assistance as this may do more harm than good!

4.     Determine the nature and extent of any damage suffered.

5.     If you are required to do so by any person entitled to such information, provide and obtain the following information:

a)    name, address and telephone number of drivers and owners of the vehicles;

b)    registration numbers of both vehicles;

c)    names of the driver’s / owner’s insurance company / insurance broker;

d)    full details of the place and time of the collision and the road conditions and visibility at the time.

6.     Make a short note (to jog your memory) of what you recall occurred immediately before and at the time of the collision (including a description of what happened, the speed at which the vehicles were travelling, whether the lights were on or off, if it was raining, whether the other driver was indicating, etc.).

7.     If you are fortunate enough to have a camera or phone with you at the time of the collision, take photographs of the scene of the collision from various angles. If not, it is always a good idea to return to the scene as soon as possible thereafter, to take the necessary photographs.

8.     Measure distances from the point of the collision to identifiable landmarks such as traffic lights, lamp standards, stop signs and the like and make a rough sketch showing the position of the vehicles immediately before and after the collision;

9.     If you are fortunate enough to have witnesses, make sure to take down their full names, addresses and telephone numbers;

10.  Do not admit liability for the collision, whether to the driver of the other car, a bystander or to the Police, as this may prejudice any claim that you may have either against the other driver or in respect of your policy of insurance. On the other hand, if the other driver apologizes for the collision and admits liability, do not hesitate to have him sign a written admission of liability there and then and, if possible, have that statement witnessed. On the other hand, if he is not prepared to commit his apology to writing, endeavour to persuade him to make his admission in the presence of a responsible official, such as a police officer.

11.  If a person or animal has been injured, you are not allowed to move the vehicles, even if they obstruct the traffic until you are given permission to do so by a traffic officer or unless either vehicle completely obstructs the road. However, if you do move either vehicle, it is important to chalk out its position before doing so. On the other hand, if no-one has been injured, it would be important to move the vehicles out of the road to prevent a further collision with oncoming traffic.

12.  If you are obliged to have your car towed away, agree the charges in advance, otherwise you could be in for a nasty shock when presented with the bill later. Similarly, if you are a member of the Automobile Association (AA), make sure that only an approved tow-in service is utilised, as the AA will not pay for such service otherwise and you could be substantially out of pocket.

13.  If there is a traffic officer at the scene of the collision, you are obliged to provide him with such information as he may require. If you do not give this information to such official, you must within 24 hours of the accident, report it at a police station or at an authorised office of a traffic officer (unless you are injured and cannot do so timeously, in which event you must report the accident as soon as is reasonably practicable thereafter). When you report the accident, give only the essentials and do not commit yourself to a written statement before consulting your insurance company or attorney.

14.  As soon as possible, advise your broker of the accident (even if you do not intend to claim), as the other driver may lay a claim at a later stage.

15.  Keeping the above in mind, it would be advisable to carry in your car a pen, paper, a first aid kit, torch and red reflective triangles.

Life insurance paid to trustee of insolvent estate and not to intended beneficiary

Mr Wentzel took out a life insurance policy with Discovery Life Limited (Discovery) insuring the life of his wife, whom he was married to in community of property in 2007, in terms of which he appointed himself as the beneficiary of the policy. The same policy also insured his life and appointed his wife as beneficiary in the event of his death.

Their joint estate was sequestrated in 2012.

Mrs Wentzel died in 2017 and Mr Wentzel claimed the proceeds from Discovery as the beneficiary of the policy.

Discovery informed Mr Wentzel that the payment of the proceeds would be made to the trustees of the insolvent estate. He approached the Pretoria High Court in Wentzel v Discovery Life Limited and Others to object and claimed that the administration of the insolvent estate had long since been finalised.

The court had to decide whether the payment of a life insurance policy by an insurance provider to a nominated beneficiary, being an unrehabilitated insolvent, would vest in the beneficiary or the trustees of the insolvent estate.

The court found that the estate of the insolvent remained vested in the trustees until such time that the insolvent was either re-vested with the estate, pursuant to a composition or his rehabilitation, neither of which had occurred. Accordingly, it directed that the insurance proceeds had to be paid directly to the trustees of the insolvent estate.

The moral of this tale is that the Wentzels should have made the beneficiary of the Discovery policy a trust and not themselves. Living Trust-centered estate plans provide superior asset protection.