ADULTERY

Did you know?

 

Adultery now without consequences since 2015!

 

Excerpts and nuances from the Constitutional Court Judgment:

• ·       The decision was “undoubtedly of historical moment” in South Africa.

• ·       The origin to sue in terms of this delict has origins which was was “deeply rooted in patriarchy”, and that this had initially led to a civil claim being only available to the husband.

• ·         Internationally the trend was towards scrapping the civil claim based on adultery.

• ·        Now, spouses themselves had the main responsibility to protect and maintain their marriage relationship.

• ·         “The law cannot shore up or sustain an otherwise ailing marriage”.

• ·         “It continues to be the primary responsibility of the parties to maintain their marriage.”
• 
  
•  “For this reason the continued existence of a claim for damages for adultery by the ‘innocent spouse’ adds nothing to the lifeblood of a solid and peaceful marriage.” 

IN AN ACCIDENT? RIGHTS AND TIPS!

If you happen to become involved in (or contribute to) an accident on a public road in which another person/s is killed or injured or suffers damages in respect of any property or animal, in terms of the Road Traffic Ordinances, you have the following duties and/or obligations:

1.            Stop your vehicle immediately. Go to your nearest police and report the accident 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 bare essentials and do not commit yourself to a written statement before consulting your insurance company or attorney

2.            Check If the person has been hurt, do all you can to help by administering first aid, (if you know how), call the emergency services.

3.            Determine the nature and extent of any damages suffered.

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

·         name, address and telephone number of both driver’s name, address and telephone      number of the owners of the vehicles

·         registration numbers of both vehicles

·         names of the driver/owner and their insurance details

·         full details of the place, time of the collision and the road conditions and visibility at the time

·         make a short note of the accident for yourself

·         if you can, take a picture and/or video of the scene and take measurements

·         if you have witnesses, get their full particulars

·         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

·         If the other driver apologizes for the collision and admits liability, have him sign a written admission of liability or have him/her repeat it before a law officer

·         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. I mark the position of the vehicle before moving it.  But 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 as some Insurance Companies will not pay out if you use certain tow away services

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

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MINERAL LAW

The acquisition, use and disposal of mineral rights is now governed by the Mineral and Petroleum Resources Development Act (MPRDA), which came into effect on 1 May, 2004. The old common-law principles relating to the acquisition, use and disposal of mineral rights are therefore no longer applicable. The MPRDA entrenches state power and control over the mineral and petroleum resources of the country.

Historically, the right to minerals fell within the ambit of property law. Mineral rights could be severed from the title to the land. Severance of the mineral rights from the surface rights enabled third parties to become holders of the mineral rights. The right to minerals could thus exist separately from ownership of the land once the right had been severed. To determine the nature and content of mineral rights, the courts relied on the established property-law principles of servitudes.

In its conventional, common-law sense, a mineral right comprised the entitlements to enter land, to prospect and to mine upon it and to remove minerals, along with all ancillary rights which enable extraction of the minerals.

Mineral rights were valuable assets. Ownership of minerals passed from the landowner to the mineral rights holder.  Under the common law, the mineral rights holder was under no obligation to exploit the rights: to mine, in other words.

The new mineral-law dispensation introduced a system of state custodianship as the basis for regulatory control over minerals and mining, and also made it clear that the only way to acquire new rights is to obtain them from the state. The Mining Titles Registration Act (MTRA) contains transitional provisions which facilitate the conversion of mining rights obtained under the previous legislative dispensation into rights in terms of the new legislative system.

The five-year transitional period created by the MPRDA has now lapsed.

As far as ownership is concerned, the common-law principle of cuius est solum eius est usque ad coelum et ad inferos has it that the owner of land is the owner not only of the surface but of everything above and below it. The MPRDA provides, however, that mineral and petroleum resources are the common heritage of all people in South Africa, for whose benefit the state is the custodian, although the MPRDA does not expressly reserve ownership of "unsevered" minerals or petroleum to the state.

According to one view, ownership of minerals and petroleum not yet extracted from the land is vested in the state; another view seeks to distinguish mineral and petroleum resources from minerals and petroleum as such, so that the collective wealth of minerals and petroleum vests in the state, while ownership of unsevered minerals still vests in the owner of the land, even though the owner may not be able to exploit such minerals. A third view holds that the state's "custodianship" of mineral and petroleum resources does not amount to ownership of unsevered minerals and petroleum: Subject to the public-trust doctrine, the landowner remains the owner of unextracted minerals and petroleum. A fourth view is that it is irrelevant where ownership of minerals and petroleum in the soil lies. AgriSA v Minister of Minerals and Energy; Van Rooyen v Minister of Minerals and Energy, however, shows that this is not merely an academic question.

A fifth view is that, in terms of the MPRDA, mineral and petroleum resources are a new category of res publicae, placing mineral and petroleum resources under the custodianship of the state. The underlying property rights of the landowner in unextracted minerals have not been destroyed in theory, but such rights can no longer be of much practical use. The state, in its custodial role, is endowed with the capacity to regulate access to the resources and is obliged to ensure their optimal exploitation.

The MPRDA's provisions are not exhaustive. It is silent about ownership of minerals and petroleum once these are extracted, whether lawfully or not. It has been submitted that the common law applies residually, so that the holders of various rights (prospecting rights, mining permits, mining rights, exploration rights or production rights) who are entitled to remove and dispose of the minerals or petroleum acquire ownership of the minerals or petroleum upon extraction.

Three basic concepts are important for an understanding of this area of the law, namely "land," "minerals" and "petroleum." "Land" includes not only "dry" land but also, in terms of the MPRDA, the sea. Ownership of dry land lies with the person in whose name it is registered. To qualify as a "mineral," a substance must be in solid, liquid or gaseous form, and occur naturally in or on the earth or water; it must, furthermore, be a product of a geological process, or it must occur in residue stockpiles or deposits. Petroleum is a substance which may be any liquid or solid hydrocarbon or combustible gas existing in a natural condition in the earth's crust.

The state may grant or refuse different kinds of rights in respect of mineral or petroleum resources and the land to which the rights relate. Such rights include

·         reconnaissance permissions;

·         prospecting rights;

·         permissions to remove minerals during prospecting;

·         retention permits;

·         mining permits; and

·         mining rights.

As explained previously, the granting of prospecting or mining rights does not as such confer ownership of unsevered minerals.

As far as expropriation and compensation are concerned, some commentators have argued that the provisions of the MPRDA amount to "institutional expropriation" of mineral rights. Other scholars have preferred a case-by-case analysis to determine how conventional common-law rights have been substituted by new rights under the MPRDA, while yet others argue that the MPRDA amounts to nothing more than a legitimate exercise of the state's regulatory powers over property law. The procedure for expropriation is set out in the MPRDA, and the state has certain obligations in respect of compensation.

The MPRDA classifies a prospecting right, mining right, exploration right or production right granted by the Minister (or delegated person in the case of prospecting rights) as "a limited real right in respect of the mineral or petroleum and the land to which such right relates."^[173] A contract of prospecting, mining, exploration or production must be in notarial form to be registered.

The MPRDA is silent about the nature of the other rights to minerals or petroleum that it recognises. These may only be recorded and filed. It has been suggested, accordingly, that these rights are personal in nature.

All rights granted by the Minister are personal rights. In Meepo v Kotze, the court indicated that the rights come into existence once the Minister, as representative of the custodian state, agrees to grant the applicant a right to prospect for minerals on specified land for a specified period. Prospecting rights, mining rights, exploration rights and production rights become limited real rights upon registration.

The MPRDA provides descriptions of the scope of the rights that may be created. These include

·         prospecting rights;

·         mining rights;

·         production rights; and

·         exploration rights.

The MPRDA details the content of these rights.  The most prominent duty of right holders is payment (of levies or fees or other consideration) to the state.

Competing rights of the surface owner in the event of an irreconcilable difference between a landowner and the holder of a mineral right, the mineral right holder takes precedence. This principle was confirmed in the case of Anglo Operations v Sandhurst Estates.  The Minister is expressly empowered by the MPRDA to expropriate property for the purposes of prospecting or mining if this is necessary to achieve the MPRDA's objectives. As per Meepo v Kotze, compensation must be paid by the state to a person who can prove that his property has been expropriated in terms of a provision of the MPRDA.

Registered mineral or petroleum rights can be alienated (transferred and/or terminated) where a different right-holder is envisaged, the written consent of the Director-General of the Department of Minerals and Energy is required. Mineral or petroleum rights that are not registered may not be transferred or leased or encumbered by mortgage.

Mineral and petroleum rights are not infinite; they last for a predetermined period of time. When that period expires, the rights expire with it. The rights also lapse when the right-holder dies. In the case of a juristic person, the rights lapse when the juristic person is deregistered without a successor in title.

In addition to regulating access to mineral and petroleum resources, the MPRDA seeks to promote various social objectives. Two of the most important of these are the protection of the natural environment and the achievement of Black Economic Empowerment: Right-holders are responsible for rehabilitating and managing negative environmental impacts, while the MPRDA seeks to expand substantially and meaningfully the opportunities for historically-disadvantaged persons, including women, to enter the mineral and industries. This latter objective is reflected, inter alia, in the requirements for the conversion of old-order mining rights to new-order rights and the requirements for applications for new mining rights. Holders of mineral and petroleum rights are required, furthermore, to demonstrate compliance with black economic empowerment on an annual basis.

Wikipedia acknowledged

THIRD PARTY CLAIMS

third party CLAIMS PROCEDURE

The claim is lodged on a prescribed statutory claim form (Form 1 is to be used in respect of claims arising prior to 01 August 2008 and RAF 1 from 01 August 2008 onwards) which provides basic information on the claimant, the vehicles and parties involved in the collision, the date and place of accident and the amounts claimed. It also contains a medical report by the treating doctor.
This claim form is accompanied by an affidavit setting out the following: 

• Full particulars of the accident,
• Statements of witnesses,
• Police reports,
• Hospital and medical records, 
• Vouchers and documents in support of amounts claimed.

The drivers of the vehicles involved in the collision must furnish details of the accident to the RAF on a statutory accident report form (Form 3 is to be used in respect of claims arising prior to 01 August 2008 and RAF 3 from 01 August 2008 onwards) together with information of witnesses which the RAF may request.

Once a claim is submitted, the RAF registers it on its claim system and commences with its investigations.
The RAF determines whether the claim is valid (i.e. was there a road accident, does it comply with statutory provisions, was it submitted in time, etc.) and what the merits of the case are (i.e. the degree of fault, blame or negligence to be ascribed to the drivers of the vehicles and the claimant respectively). The quantum is also determined (i.e. the amount of the damages or losses suffered).

If a claim is incomplete, the RAF calls for additional information and supporting documentation to enable it to better assess the matter.

If the claim arose after the 31 July 2008 and general damages are claimed, a Serious Injury Assessment Report (RAF 4) must be submitted to the RAF confirming that the injury sustained is serious for the purposes of the Act.

Information obtained from http://www.raf.co.za/claims/Pages/default.aspx (accessed on 26 March 2017).

EVICTION FROM PROPERTIES

This legal concept is regulated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

The Constitution of the Republic of South Africa provides that: "No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances". 

Arbitrary Evictions are not legal.. PIE sets out the procedure to be followed in the case of such evictions. 

In Port Elizabeth Municipality v Various Occupiers, the Constitutional Court stated that it expressly requires the court to infuse elements of grace and compassion into the formal structures of the law.

CONSUMER PROTECTION

THE CONSUMER PROTECTION ACT (PART 1)

We will now examine some introductory aspects of a law which impacts on the lives of each and every person on a daily (if not more) basis – CONSUMING FROM THE MARKETPLACE (by means of PRODUCTS and/or SERVICES)

What is this Act all about?

• ·         It promotes a fair, accessible and sustainable marketplace for consumer products and services
• ·         It establishes national norms and standards to ensure consumer protection
• ·        It makes provision for improved standards of consumer information, to prohibit certain unfair marketing  and business practices
• ·         It promotes responsible consumer behaviour
• ·        It promotes a consistent legislative and enforcement framework, related to consumer transactions and  agreements
• ·       It establishes the National Consumer Commission and replaces old Acts (including the Consumer Affairs (Unfair Business Practices) Act of 1988; Trade Practices Act of 1976; Sales and Service Matters Act of 1964; Price Control Act of 1964; and Merchandise Marks Act of 1941 (specifically Sections 2-13, and 16-17)