Verify your marital status

Courtesy of Home Affairs.

Did you know you can verify your status (marital, passport, etc.) by sending an sms with the respective code, a space and your ID number to 32551?

Example to check marital status: 

M 8511015050089

The codes are as follows: 

ID - ID application, 

P - Passport application, 

M - Marital Status, 

L - Living status and 

D - to check if you have a Duplicate ID number.

Residential leases: what are your rights as a landlord or tenant?

The relationship between a landlord and tenant is governed by the Rental Housing Act, 1999 (Act No. 50 of 1999), which provides that:

1. A lease need not be in writing unless a tenant insists. A written lease must contain the following terms: 

·         the names of the tenant and the landlord and their addresses in the Republic for purposes of formal communication;

·         the description of the dwelling which is the subject of the lease;

·         the amount of rental of the dwelling and reasonable escalation, if any, to be paid in terms of the lease;

·         if rentals are not paid on a monthly basis, then the frequency of rental payments;

·         the amount of the deposit, if any;

·         the lease period, or, if there is no lease period determined, the notice period requested for termination of the lease;

·         obligations of the tenant and the landlord;

·         the amount of the rental, and any other charges payable in addition to the rental in respect of the property.

2. If appropriate (e.g. the tenant occupies a unit in a sectional title scheme) a copy of any House Rules applicable to a dwelling must be attached as an annexure to the lease.
3. The landlord must furnish the tenant with a written receipt for all payments received by the landlord from the tenant.
4. The landlord may require a tenant, before moving into the dwelling, to pay a deposit.
5. The landlord must invest the deposit in an interest-bearing account with a bank (at a rate not be less than the rate applicable to a savings account with that bank).
6. The tenant may, during the period of the lease, request the landlord to provide him or her with written proof in respect of interest accrued on such deposit, and the landlord must provide such proof on request.
7. Before the tenant moves into the dwelling, the tenant and the landlord must jointly inspect the dwelling to ascertain the existence or not of any defects or damage therein with a view to determining the landlord’s responsibility for rectifying any defects or damage or with a view to registering such defects or damage.
8. A list of any defects must be attached as an annexure to the lease.
9. At the expiration of the lease the landlord and tenant must arrange a joint inspection of the dwelling at a mutually convenient time to take place within a period of three days prior to such expiration with a view to ascertaining if there was any damage caused to the dwelling during the tenant’s occupation thereof.
10. On the expiration of the lease, the landlord may apply such deposit and interest towards the payment of all amounts for which the tenant is liable under the said lease, including the reasonable cost of repairing damage to the dwelling during the lease period and the cost of replacing lost keys and the balance of the deposit and interest, if any, must then be refunded to the tenant by the landlord not later than 14 days of restoration of the dwelling to the landlord.
11. The relevant invoices which indicate the costs which the landlord incurred must be available to the tenant for inspection as proof of such costs incurred by the landlord.
12. Should no amounts be due and owing to the landlord in terms of the lease, the deposit, together with the accrued interest in respect thereof, must be refunded by the landlord to the tenant, without any deduction or set-off, within seven days of expiration of the lease.
13. Failure by the landlord to inspect the dwelling in the presence of the tenant is deemed to be an acknowledgement by him that the dwelling is in a good and proper state of repair, and the landlord will have no further claim against the tenant who must then be refunded the full deposit plus interest by the landlord.
14. Should the tenant fail to respond to the landlord’s request for an inspection, the landlord must, on expiration of the lease, inspect the dwelling within seven days from such expiration in order to assess any damages or loss which occurred during the tenancy.
15. The landlord may in these circumstances, without detracting from any other right or remedy of the landlord, deduct from the tenant’s deposit and interest the reasonable cost of repairing damage to the dwelling and the cost of replacing lost keys.
16. The balance of the deposit and interest, if any, after deduction of the amounts contemplated above, must be refunded to the tenant by the landlord not later than 21 days after expiration of the lease. 
17. Should the tenant vacate the dwelling before expiration of the lease, without notice to the landlord, the lease is deemed to have expired on the date that the landlord established that the tenant had vacated the dwelling but in such event the landlord retains all his or her rights arising from the tenant’s breach of the lease.  
18. If on the expiration of the lease the tenant remains in the dwelling with the express or tacit consent of the landlord, the parties are deemed, in the absence of a further written lease, to have entered into a periodic lease (one for an undetermined period, subject to notice of termination by either party) on the same terms and conditions as the expired lease, except that at least one month’s written notice must be given of the intention by either party to terminate the lease.

Is the disclaimer at the foot of your email enforceable?

As far as I have been able to establish, no court has pronounced on the enforceability of email disclaimers.

Generally, they seek to impose a contractual obligation between the sender and recipient. In terms of the law of contract, unilateral contracts are generally unenforceable, even in the form of email disclaimers.

However, the doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. If the recipient reasonably believes the email was sent by someone representing the company, he or she can conclude that the content of that email represented the views of the company. If the email was defamatory of the recipient, he or she could sue the company. The exception to this is where the recipient has good reason to believe that the sender was not acting on behalf of the company, but was in fact acting on ‘a frolic of his own’.

The types of legal problems that can be caused by an email are numerous and could include claims for Defamation, Misrepresentation, Breach of Confidentiality, Sexual Harassment and Virus contamination of a recipient’s network.

Even if the recipient of your email does nothing to signify acceptance of the disclaimer, the chances of the disclaimer being effective are improved if:

·    the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he or she has read the contents of the email so that in the same way as a fax cover sheet disclaimer, the recipient can make an informed decision whether to continue reading the contents.

·      if the recipient has received emails from the sender before, it could be argued that s/he knew and accepted the contents of previous email disclaimers and should exercise care in continuing the exchange of emails if s/he is unwilling to accept the terms of such disclaimer.

The actual content of the disclaimer is important. It should anticipate areas of potential liability as contemplated by the common law and statute, such as the Consumer Protection Act and the soon-to-be enacted Protection of Private Information Act.

A company can and should minimise the damage that it could suffer at the hands of its employees who may send embarrassing or offensive emails. What procedure should it follow?

Every company should have a detailed Email and Internet Use Policy in place, that must be signed for in writing by every staff member. The policy should set out the sanctions for various types of breach of the policy. Let Bregmans help you design this policy.

I recommend that your emails begin with this disclaimer:

The contents of this e-mail and any attachments are confidential, may be privileged and are intended solely for the use of the named recipient(s). If you have received it in error, do not disclose, distribute, or retain it or any part of it, and please notify the sender immediately and delete the e-mail.

And end, below your signature, with:

E-mail is not necessarily secure or error free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or contain viruses. We endeavour to exclude viruses from our e-mails. However, it is the responsibility of the named recipient(s) to ensure that e-mails and all attachments are virus free. Name of your company accepts no liability or responsibility of whatsoever nature should information or data be corrupted, or fail to reach its intended destination or be accessed by anyone other than the addressee, for whatever reason or cause.

Be cool – the right of cooling off

In our law a person usually can’t get out of a contract simply because he changes his mind. One needs a good reason to cancel. However, because of the pressure selling of door-to-door salespeople and unsolicited contracts, laws around the world have given consumers certain cooling-off rights to cancel a contract within a defined number of days. Here are examples of such rights in South Africa.

The National Credit Act

The National Credit Act limits the cooling-off right to leases and instalment agreements entered into at a location other than the registered business premises of the credit provider. A typical example of this is where a consumer buys books on instalments from a Readers’ Digest salesman at his home.

The consumer has 5 business days (excluding weekends and public holidays) after he signs the contract to get out of it. To do so, he must give notice of termination to the credit provider in writing (delivered by hand, fax, email or registered mail) and tender return of any goods he received. Within seven days of the written notice, the credit provider must, in turn, refund any deposit the consumer may have paid.

Unless the consumer hand delivers the goods to the credit provider it is entitled to deduct the reasonable cost of getting the goods back. Similarly, if the goods are not in their original packaging and have been used, the credit provider is entitled to the reasonable cost of restoring the goods to their pre-delivery condition.

Obviously, these rights are open to disputes that may end up in court. Credit providers will probably stipulate in their instalment sale agreements an amount that the parties agree will represent damages, depreciation, etc., if the goods are returned.

So if you have a change of heart, make sure you don’t use the goods, keep the original packaging and deliver them to the credit provider and get a representative to acknowledge in writing that the goods were returned in pristine condition.

The Consumer Protection Act

Section 16 of the CPA allows a consumer to rescind a transaction that came about as a result of direct marketing, without reason or penalty. The consumer merely needs to give the supplier written notification of his or her intention to rescind the agreement, and this notification must be given within 5 business days of the transaction being concluded or, within 5 business days of the goods being delivered to the consumer. Where the transaction entailed goods being delivered to the consumer, then the consumer must return the goods to the supplier at the consumer’s risk and expense, and the goods must be returned to the consumer within 10 business days after the goods were delivered to the consumer.

The Alienation of Land Act

A purchaser of land has five business days after signature of an offer to purchase to revoke the offer by giving written notice to the seller or his or her agent. The written notice must be signed by the purchaser or his or her agent acting on his or her written authority, must identify the offer that is being revoked and must be unconditional.

Where an offer is revoked the seller shall refund the full amount of any deposit he received to the purchaser within 10 days of the date on which the notice was delivered to the seller or his or her agent.

This five-day cooling-off period will not apply if:

·         the purchase price of the land, or the price offered for the land by the prospective purchaser exceeds R250 000 or such higher amount as the Minister may prescribe in order to counter the effect of inflation; 

·         the purchaser or prospective purchaser is a trust or a person other than a natural person;

·         the purchaser or agent purchased the land at a publicly advertised auction;

·         the seller and purchaser had previously entered into a deed of alienation of the same land on substantially the same terms;

·         the purchaser had reserved the right to nominate another person to take over his rights and obligations in the offer;

·         the purchaser purchased the land by the exercise of an option which was open for exercise for a period of at least five days.

Neither the seller nor his agent is entitled to any remuneration or damages if the contract is terminated. A condition in the offer to purchase imposing a penalty or fee on the purchaser should he or she exercise the cooling-off rights shall be void. Similarly, any waiver by a purchaser of the rights conferred upon him or her, shall also be void.

The Children’s Act

Section 233 provides that the parent/s or guardian of a child and the child himself must consent to the adoption of a child. Each has 60 days to reconsider and withdraw such consent. The children’s court may not grant an order of adoption before the expiration of the 60-day period.

If a child over the age of ten years (or, if under the age of 10 years, is of an age, maturity and stage of development to understand the implications of such consent) has given consent to his or her adoption, such consent may be withdrawn at any time before the order of adoption is made by the children’s court.

What’s in a surname?

This article deals with the Births and Deaths Registration Act 51 of 1992 and The Children’s Act, 38 of 2005, which govern the surname a child assumes at birth, and when a woman or man may change his or her surname.

Surname of a child at birth

A legitimate child takes the surname of either the father or the mother of the child concerned or the surnames of both parents as a double-barrelled surname.

A child born out of wedlock 

·         The child takes the surname of the mother. However, the child can assume the natural father’s surname if both parents apply jointly to enter the father’s surname in the birth register provided that the father acknowledges his paternity in writing.

·         A child born of parents who marry each other at any time after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth. This applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

A child born of voidable marriage

·         The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage. No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

·         The father of a child conceived of a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

A child conceived by artificial fertilisation

·         Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.

·         Whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.

Change of woman’s surname

·         After her marriage a woman can either choose to retain her own surname or assume her husband’s.

·         Even if she assumes his surname she can resume a surname which she bore at any prior time.

·         A married or divorced woman or a widow who resumes a surname which she bore previously and a woman, whether married or divorced or a widow, adds to the surname which she assumed after the marriage, any surname which she bore at any prior time.

Change of man’s surname

On good cause shown, Home Affairs may authorise a man to change his surname. He must apply on the prescribed form and, if approved, the name change is gazetted.