If your maintenance is in arrears, contempt of court proceedings may be an effective way to enforce speedy payment - as a farmer in effective control of two farms found out recently when his plea of poverty was rejected, and he was sentenced by the High Court to a suspended sentence of 3 months imprisonment, to come into effect unless he pays the arrears per a strict timetable. To succeed, you need to prove (beyond a reasonable doubt) :-
Basson Blackburn News
The safest way to pay a creditor these days is probably electronic transfer or bank deposit, but the riskiest must be the "cheque in the post" - the chances of interception and theft (even of restrictively crossed cheques) are so high that what used to a common form of payment is now a rarity.
As a creditor, do not in any way authorise or request payment by posted cheque, unless you are happy to bear the risk of loss (the risk is yours as soon as the cheque is posted). Rather insist that your customers make payment direct into your bank account, and/or that - if they choose to pay by cheque - they do so at their risk entirely. Take advice if you aren't sure that your credit documentation covers you adequately in this regard.
In terms of the National Credit Act, a creditor cannot take legal steps against a defaulting debtor without first giving notice of default to him/her, proposing that the debtor refer the credit agreement to a debt counsellor or other competent authority. The potential for prolonged delay - and consequent prejudice to the creditor - is significant.
If you are a firearm owner born between 1 October and 31 December who didn't renew your licence by the deadline of 31 March 2009, you have until 30 June 2009 to (as advised by SAPS) "opt for other options such as selling of their firearms to another person/ legal entity, applying to the South African Police Service to deactivate the firearm or voluntarily handing the firearm over to the South African Police Service for destruction".
Financial services providers risk liability for any poor investment advice they give, and need to comply strictly with their statutory Code of Conduct. A recent determination by the FAIS Ombud illustrates in particular the danger of not keeping the required "record of advice" given to clients.
A broker who advised his clients to invest monies with Fidentia was ordered to personally cover his clients' losses, even though the clients were found to have been aware that the investment was a high risk one. Critical factors seem to have been the "exorbitant" commissions earned by the broker, and the broker's inability to provide "any record of advice, or for that matter any other documentation as required by the General Code evidencing the fact that the investment was an appropriate one in the circumstances".
A pyramid scheme must, by definition, eventually collapse; leaving (statistically) up to 88% of investors queuing for whatever the liquidator is able to recover for them from the perpetrators.
Even those investors who "got out early" can expect a claim for repayment from the liquidator, and a recent High Court judgment illustrates the dangers of investing in any scheme that looks suspiciously profitable, even if the investment is made entirely innocently (that is, without any knowledge that it is going into a pyramid scheme).
Credit providers and consumers need to be aware of a recent High Court ruling that applies to any debt governed by the National Credit Act (the relevant sections of which came into effect on 1 June 2007).
In a nutshell, interest and costs stop accruing on such a debt as soon as it equals the capital (the "principal debt") outstanding at date of default. So the penalty for falling into arrear on a credit agreement will be having to pay up to double the debt. But never more than double.
Credit providers - tighten up your lending and recovery procedures! Debtors - check that you don't overpay!
Never buy anything without checking that the seller is indeed the true owner. If he or she isn't, the real owner can recover the property from you, even if you bought it from the seller entirely innocently.
That leaves you with nothing but a worthless claim against a fraudster. Which is precisely what happened in a recent High Court case where a motor vehicle was fraudulently "bought" on an auction, and "paid" for with a stolen cheque. In short order the fraudster registered the car into another name, sold it on to his innocent victim, and disappeared with the money.
With our Constitution guaranteeing freedom of expression, how far can you go in publishing allegations against others without becoming liable for defamation? (Note that "publishing" is not limited to publication in the media - any form of disclosure to another person/s carries risk).
Our law provides that once a publication is proved to have been defamatory (damaging to another's reputation), it is presumed to be intentional and wrongful. That puts the onus on you to prove justification via one of the legal defences - such as "mistake", "lack of intention", "consent", "fair comment", "truth and public benefit", or "privilege".
How far may doctors go in delegating responsibility for the treatment of their patients to the patients themselves?
This question arose in the High Court recently, where the parents of a child born with Down's syndrome sued for damages from the hospital and clinic that attended to the pregnancy. The hospital/clinic staff were found to have been "grossly negligent" in failing to ascertain at an early stage of the pregnancy that the foetus suffered from a genetic abnormality.
You learn that your debtor is about to skip the country, leaving you to pursue your claim in a foreign court - an expensive and inconvenient alternative at the best of times. What can you do?
Our law provides a drastic remedy, with a suitably impressive and ominous Latin name: "Arrest tanquam suspectus de fuga". In a nutshell, a court may in appropriate circumstances order your debtor to be arrested and detained until he/she pays the debt or provides sufficient security for it.
More Articles ...
- Fraud on sars = Invalid contract
- Mediation: when to consider it, and the dangers of declining
- School fees - Both parents liable
- Sellers, watch out! Double commission danger
- Municipalities - Word your service agreements with care!
- Compromising a claim? Don't rely on a "full and final settlement" cheque
- Stolen cars and "owner's risk"
- Directors, reckless trading: "Honest belief" irrelevant
- Suing to enforce a credit agreement? deliver the NCA notice correctly!
- "Forced Sale" valuations not enough to prove insolvency