In general the PAIA legislation creates the framework to the right to access information enshrined in section 32 of the Constitution.  The purpose of this legislation is to promote a culture of transparency, accountability and good governance both in the private and public sectors. Therefore, the Act places specific compliance requirements on both state institutions and private sector. PAIA gives a requester the right to lodge a request from the information officer (head) of a private body-

A private body as defined in the Act includes

•  A natural person who carries or has carried on any trade, business or profession,
• A partnership which carries or has carried on any trade, business or profession or
• Any former or existing juristic person, but excludes a public body,including close corporations, non-profit organizations and trusts.

The Act further defines the head of a private body as “the chief executive officer or equivalent officer of the juristic person or any person duly authorized by that office….”

In terms of section 51 of PAIA, the head of a private body must:

• compile a section 51 manual which is a roadmap of the company
• submit the manual to the South African Human Rights Commission
• effect material changes if any each time these occur and resubmit to the SAHRC
• update any material changes on the manual on a regular basis;
• make the manual available as prescribed by the Act at the company offices and on their website;
• must  annex a request form to the manual and  also make request form available on the    website and at the company premises access points;
• there are penalties for non compliance –

The manual must among others contain the following information:

• details of the company’s postal, email and street address, fax and phone of the company,
• the description of available records generated by the company stating those which are automatically available and those that are available on request.
• outline the request procedure in terms of PAIA;
• state who the head of the company is (CEO is usually the  Information Officer in terms of PAIA)
• stipulate the fees applicable as legislated by the Act which are chargeable to requesters
• remedies available to requesters if their request for information has been refused
• details facilitating request for access to a record etc.

As we approach the festive season when everyone is making plans for their annual year end break and it is that time when blended and separated families run the risk of serious legal action when access is being denied by one of the parents.

The solution to the problem differs somewhat depending on whether or not there is an existing order regulating and specifying access to the party seeking relief. If no order exists it will be necessary for the other person to approach a Court, Children’s or High Court, to get the necessary order which will then allow the person to enforce that access that is specified.

In terms of section 35 of the Children’s Act:Any person who has care or custody of a child in terms of a court order, or parental responsibilities and rights agreement, and refuses another person who has access to that child or parental responsibilities and rights in respect of that child, contact with that child or prevents that person from exercising those rights, is guilty of an offence. If that person is convicted for such an offence they will be liable for a fine or imprisonment for no more than one year.

So what do we do when access is withheld or denied?

• Ensure that you have an order specifying access
• Enforce your access by laying criminal charges
• Make the South African Police services do their job.

When the legislation was introduced there was a lot of hope and belief that there would be real relief for those who had experienced financial difficulties and who were trying to sort out their financial woes. Alas that is not what is happening. All sorts of people have registered themselves as counsellors, all those folk who have failed at everything else have set themselves up to advise and assist. Talk about the one-eyed being king of the blind, well this is definitely the case. What has now happened is that there is another layer of “professional” who preys on the financially bereft, and what is more he has been shuffled to the front of the queue and he takes of the unsuspecting debtor’s first fruits. It is only after the DC has been paid that the other “protection” in terms of the Act comes into play and it has not proved very effective. While the proposed distribution plans languish in the halls of justice waiting for overworked or reluctant magistrates to approve the distribution plans, the debtor is at the mercy of creditors who ignore notices etc from the counsellor. In true David and Goliath style it is up to the broke debtor to somehow take on his creditor who has repossessed his vehicle or other goods and now not only has he paid someone else in the financial food chain but he is in a worse position than before – no vehicle. God help those reps and others who need their vehicle for work. So I ask myself was this just another badly conceived idea or was it a deliberate con to get all the unscrupulous advisers onto the “taking from the poor” gravy train?

So often the traditional approach breaks bonds and relationships, polarizes parties and harms and hurts the very vulnerable, adults and children which the parties profess to want to protect in their litigious zeal and last but not least is just too expensive. Intervention, mediation and other forms of Alternative Dispute Resolution (ADR) mechanisms, in the hands of a trained professional help to identify the problem and then give that problem the attention of both parties through the ADR process and can cost just so much less.

Being part of a resolutive process not only empowers the parties through this process but allows them to participate in finding workable and long term solutions to the family’s problems and may just be the way to solve an expensive problem.

So if you want FREE LEGAL ADVISE PLUS a measured and sensible assessment of the most effective solution, financial and otherwise contact the Family Law Clinic on:

Tel +27218715504

e-mail: info@familylawclinic.org.za

Fax: +27218517506.

The marriage is currently the only social / legal institution that protects the rights of social partners or spouses, as they are called inside marriage, without having to enter into additional agreements, as there is an automatic and reciprocal duty of support between spouses, duty of maintenance during and in some cases after termination of the marriage, spouses can inherit from one another through testate (will) and intestate succession, etc.

The legal and proprietary consequences of life partnerships or cohabitation relationships should be regulated by a partnership agreement. However, in the absence of agreement, partners can still approach a court, after the relationship has been terminated (by death or separation), for an order for maintenance, an intestate succession order and / or an order dividing the property.

In these instances the courts must have regard to all the circumstances of the relationship before giving an order. This, however, is an expensive and time consuming process with no guarantee a satisfactory outcome for the parties.

Couples who are in unrecorded life partnerships are urged to employ the services of an attorney to draft and assist in the execution of a suitable partnership agreement and to make the necessary legal provisions in their wills.

Nobody budgets for litigation. When issues arise, the reality is that most of us can’t afford to litigate. Those fortunate enough to be able to afford it, consider it a grudge spend. Cost is often the greatest barrier to litigation. Who wants to spend his or her hard earned cash on something as negative as litigation. However as long as human nature is what it is and people clash with each other, it is important to have some mechanism to resolve issues and conflict. So what are the options available to you when you find yourself in a conflict situation?

Firstly consider very carefully the cost, both financially and emotionally, of your response. To litigate only to defend a principle can come at enormous cost. Consider walking away.

If avoiding the conflict is not possible, consider alternative dispute resolution. This will include dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement instead of litigation. These represent other way that parties can settle disputes, with (or without) the help of a third party. ADR is the most effective method of resolving disputes outside the judicial process (in other words formal litigation in court). ADR is more efficient and effective than the courts in providing justice.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact the new Children’s Act 38 of 2005 in general underpins the importance of a conciliatory and non-confrontational approach to the settlement of child-centered disputes. It very specifically refers to mediation as an appropriate means of dispute resolution. In some instances the Act expressly mandates mediation and in others the Act grants the court the discretion to order mediation. There are also several provisions in the Children’s Act which do not specifically mention mediation, but where mediation is definitely implied.

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute

Should ADR be unsuccessful, before approaching lawyers, who are generally very expensive, one should explore other legal resources, state run or otherwise These organisations could help by  through formal court-based litigation or even by using ADR to resolve issues. For an organisation that could assist you to decide on the best and most cost effective way to solve such a problem I refer you to THE FAMILY LAW CLINIC on www.familylawclinic.org.za

Protecting the vulnerable in the community is essential in any society. It is  not only women and children who are the subject of society’s to abuse but the elderly too.. It is those who have loved and cared for us who become the target of anger and frustration who need special care and looking after. How do we protect these folk

The Power of Attorney (PoA) was originally developed for business purposes, where the principal appoints an agent to act on his behalf. However the PoA is invalid once the principal is no longer fully capable of understanding it.  For this reason, the PoA is only of use, in the case of dementia, in the early stage.  Once it becomes invalid, it may be necessary to opt for administration or curatorship.  In these cases, it does not allow for occasional capability (lucid intervals).

Curatorship

The Curator route is via a high court application for the such appointment, in terms of common law.  There are two forms of curatorship and one or both may be appointed:

• the curator bonis administers the person’s property, including the finances, he
• the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.

The court requires two medical reports, one of which must be from a psychiatrist.  It is important to mention that curatorship does not give as many powers as people imagine.  For example, a curator has no locus standi to institute an action for divorce on behalf of a person declared to be mentally ill.  Nor can a curator make a will or exercise parental authority on behalf of such person.

An important point is that appointing a curator can strip the person of feelings of self-worth, to the extent that it can trigger a rapid decline.

Administration

The Mental Health Care Act (17 of 2002), which came into effect on 15 December 2004, allows for the appointment of an administrator to manage the person’s property.  This Act applies only to the mentally ill and to those with severe or profound intellectual disability.

It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court.  A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.  .

The Master requires proof that the person has seen the application and had the opportunity to object to it.

The cost and duration of the application depend on the person’s assets:

• with capital assets less than R200,000 or income of up to R24,000 pa, it‘s quick and there are no costs, other than those incurred to obtain the medical evidence required for the application.
• above that, the Master is obliged to appoint an interim administrator and cause an investigation to be conducted.  The investigator looks at every aspect:  finances, medical, family and the applicant him/herself, then makes a recommendation to the Master.  In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate

Appointment of an administrator is generally much cheaper than obtaining curatorship, but be aware that less extensive cover is granted than in curatorship.

The word rescue means “to prevent something from being discarded, rejected, or put out of operation” and suggests that that thing be saved and once again resume its position in one’s life. The question that must be asked is whether it should be saved, if so can it be saved and only then how it should be saved.

COMPANY RESCUE

What is company Rescue?

Before the inception of the “new” Companies Act the only procedure to “rescue” a company in dire financial straits was to place the company under Judicial Management. This process had certain restraints, which excluded it as an option for most legal entities.

Companies, as well as close corporations, which are now deemed private companies, can now be placed under “Company Rescue”.

Business Rescue is intended to do for companies, what debt counselling is doing for individuals, namely to obtain the protection of the law, and effectively obtaining a moratorium period, in which to pay creditors in a structured way, without the threat of legal action, or the loss of assets.

As was applicable to Judicial Management, an application is made to court, in an effort to obtain a Business Rescue Order.

A Business Rescue Practitioner is then appointed to manage the company, while paying off the existing debt.

Once an order has been granted, no creditor can enforce his rights through the legal process, subject to certain conditions.

The Business Rescue Order can be uplifted, once the company has regained its financial independence.

History of Mediation

Mediation practices date back to Phoenician society, ancient Greece, and Rome. In some cultures around the world, the mediator is regarded as an important figure in the community, worthy of great respect. Buddhist traditions also encourage dispute resolution through discussion and mutual agreement rather than by force or by third-party arbitration.

Alternative Dispute Resolution techniques such as conciliation and mediation are still highly favored processes throughout East Asia. Islamic culture has also historically embraced the process of mediation to resolve community disputes. In 1980 the United States Congress passed the Dispute Resolution Act calling for ADR programs nationwide to be administered by the Justice Department.

General Framework and Philosophy of Mediation

In mediation, a neutral party facilitates communication between parties to enable them to reach a mutually acceptable resolution to the dispute in question. The process is intended to be highly confidential so as to allow the parties to communicate freely, without fear of their statements becoming public. A mediator generally assists the parties in generating options and creative solutions that will help to resolve the dispute. Mediators do not exert direct control over the outcome of the process, in contrast to what a judge or arbitrator may do. Instead, the parties mutually agree, on a voluntary basis, to a specific, legally enforceable resolution.

In contrast to a traditional legal setting, such as litigation, lawyers are unnecessary in the mediation process, although they may have occasion to participate in some circumstances. A mediator, unlike a lawyer, does not advocate for one side or another, and should, in fact, be disinterested in the outcome of the dispute. The fact that a mediator does not have the authority to impose a decision upon the parties is a great advantage to the mediation process because it disincentivizes the parties to lie or exaggerate their claims, as they might otherwise do in a traditional legal setting. In fact, it has been widely observed that in this particular setting, the parties themselves tend to step forward as leaders to resolve the situation on their own, instead of conceding the process to a judge or arbitrator.

In addition to facilitating discussion, mediators often carefully help the parties to reasonably evaluate their position, interests, risks and options. Throughout this process, the mediator must proceed cautiously to ensure neutrality and to prevent even the appearance of bias. One major theoretical distinction between mediation and other dispute resolution mechanisms is that, in contrast to litigation or arbitration which looks toward the past to untangle facts and interpret actions, mediation looks to the future. This forward looking approach is intended to resolve a problem rather than to stir up anger, confusion and conflict regarding a past event.

Contemporary Status of Mediation

Today, mediation is becoming increasingly common as the litigation process has become overburdened in our notoriously litigious society. In fact, many commercial contracts specifically prescribe mediation as the preferred method of dispute resolution to avoid unnecessary and excessive costs, delays and exposure to public scrutiny. Mediation is a popular form of dispute resolution in nearly every industry and area of life, from divorce disputes to complex union bargaining processes

Mediation is not right for every situation, it is important to understand the strengths of mediation and the conditions which allow it to be successful. Some of the great advantages of mediation include:

• low cost
• expedient resolution
• confidentiality
• privacy from public and media scrutiny

Some circumstances which make mediation an ideal form of dispute resolution include, where:

• there is no available legal remedy
• an ongoing relationship exists between the parties
• cost is a significant issue
• timely resolution is a factor
• direct negotiations have failed
• where multiple parties are involved

The factors which mitigate against mediation:

• when a party seeks a declarative result (who’s right and who’s wrong)
• when a party wants to punish another party
• when a party desires to send a message to the public, an industry or individual
• where a legal interdict is required to prevent an ongoing or future harm
• when a party refuses to participate in the mediation process

Circumstances may arise such as the abandonment or disappearance of a parent which causes problems in and with the exercise of the parental responsibilities and rights and it becomes necessary for proper parenting to terminate or suspend the other parent’s  responsibilities and rights

A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to:

• the High Court,
• a divorce court in a divorce matter
• or a children’s court

within whose area of jurisdiction the child concerned is ordinarily resident.

for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

This application may be combined with an application for the assignment of contact and care in respect of the child and may be brought by:

• a co-holder of parental responsibilities and rights in respect of the child,
• by any other person having a sufficient interest in the care, protection, well-being or development of the child,
• by the child, acting with leave of the court, in the child’s interest
• by any other person, acting with leave of the court or
• by a family advocate or the representative of any interested organ of state.

When considering such application the court must take into account:

• the best interests of the child,
• the relationship between the child and the person whose parental responsibilities and rights are being challenged,
• the degree of commitment that the person has shown towards the child and
• any other fact that should, in the opinion of the court, be taken into account.

The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.