Prescription

Prescription.

Many people lose out on claims they have due to prescription.

What is prescription. Prescription is the time allowed for a debt to remain current or for the question of ownership of property to remain uncertain. It is therefore the time allowed for a matter to be brought before court- whether it is to stake claim to land that has been occupied by others or to claim a debt that is owing by virtue of damages incurred or some other wrongdoing. The rationale behind the concept of prescription is, off course certainty and the practical concept that evidence becomes harder to provide as time passes.

What is the period of prescription in respect of debts:

Periods of prescription of debts The periods of prescription of debts are the following:

1. thirty years in respect of -

1. any debt secured by mortgage bond;
2. any judgment debt;
3. any debt in respect of any taxation imposed or levied by or under any law;
4. any debt owed to the State in respect of any share of the profits, royalties or any similar consideration payable in respect of the right to mine minerals or other substances;

2. fifteen years in respect of any debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor, unless ;
3. six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in respect of the debt in question in terms of other provisions;
4. three years in respect of any other debt unless legislation provides otherwise. When the State is the debtor. (2) A notice must be served on the organ of state within six months from the date on which the debt became due, notice must be served’ on an organ of state by delivering it by hand or by sending it by certified mail or, subject , by sending it by electronic mail or by transmitting it by facsimile. If a notice has been sent by electronic mail or transmitted by facsimile the creditor must-
   1. take all reasonable steps to w ensure that the notice has been received by the officer or person to whom it was so sent or transmitted; ; and
   2. within seven days after the date upon which that notice was so sent or transmitted, deliver by hand or send by certified mail a certified copy of that notice to the relevant officer which must be accompanied by an affidavit by the creditor or the person who sent or transmitted the notice:
   1. indicating the date on which and the time at which, and the electronic mail address or facsimile number to which, the notice was so sent or transmitted;
   2. containing any proof that it was sent or transmitted;
   3. setting out the steps taken to ensure that the notice has been received by the officer or person to whom it was so sent or transmitted; ; and
   4. indicating whether confirmation of the receipt of the notice has been obtained and, if applicable, the name of the officer or person who has given that confirmation.

      How may prescription be interrupted.

      Most importantly prescription is interrupted if the debtor acknowledges the debt and the debt starts to run afresh from the day on which the debt is acknowledge . Acknowledgment may be express or tacit - meaning that the debtor may acknowledge the debt by some form of action eg: paying off part of the debt. For matters of proof acquiring this acknowledgement in writing is preferable. Therefore a letter of demand should always be sent and any acknowledgement recorded in writing. Prescription is also interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. Here the following must be present:
   5. The debtor must acknowledge debt or
   6. The creditor must prosecute the claim to judgement.
   7. The creditor must not abandon the judgement
   8. The judgement must not be set aside.
   It must be noted that even after a judgement has been given the debt can and will prescribe within the normal time frame if the debtor does not pay the debt.

   Prescription is Suspended in certain circumstances.

   1. the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription as contemplated above; or
   2. the debtor is outside the Republic; or
   3. the creditor and debtor are married to each other; or
   4. the creditor and debtor are partners and the debt is a debt which arose out of the partnership relationship; or
   5. the creditor is a juristic person and the debtor is a member of the governing body of such juristic person; or
   6. the debt is the object of a dispute subjected to arbitration; or
   7. the debt is the object of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of the debtor or against a company in liquidation or against an applicant under the Agricultural Credit Act, 1966 (Act No. 28 of 1966);or the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed;

   If the relevant period of prescription would, (but for the Act ) be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph has ceased to exist, the period of prescription shall not be completed before a year has elapsed after the day the relevant impediment has ceased to exist.

   RECIPROCAL DEBTS

   A debt which arises from a contract which would, but for the provisions of the Act, become prescribed before a reciprocal debt which arises from the same contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes prescribed.

Environmental law

The Constitutional Position

S 24 of the South African Constitution provides that: Everyone has the right -

1. to an environment that is not harmful to their health or well-being; and
2. (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -

1. (i) prevent pollution and ecological degradation (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development. To this end several pieces of important legislation have been enacted not least of which is the ** National Environmental Management Act **(Nema).
   Pollution is defined by NEMA as:

   any change in the environment caused by:
   
   
   

   (i) substances;

   (ii) radioactive or other waves; or

   (iii) noise, odours, dust or heat, emitted from any activity, including the storage or treatment of waste or substances, construction and the provision of services, whether engaged in by any person or an organ of state, where that change has an adverse effect on human health or well- being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future; And anyone found causing significant pollution is liable to a fine not exceeding R 1million.




Whistleblowers are protected

S31 (4) of NEMA provides that:

no person is civilly or criminally liable or may be dismissed, disciplined, prejudiced or harassed on account of having disclosed any information, if the person in good faith reasonably believed at the time of the disclosure that he or she was disclosing evidence of an environmental risk and the disclosure was made in accordance with subsection (5). (5) Subsection (4) applies only if the person concerned: (a) disclosed the information concerned to: (i) a committee of Parliament or of a provincial legislature; (ii) an organ of state responsible for protecting any aspect of the environ- ment or emergency services; (iii) the Public Protector; (iv) the Human Rights Commission; (v) any attorney-general or his or her successor; (vi) more than one of the bodies or persons referred to in subparagraphs (i) to (v); (b) disclosed the information concerned to one or more news media and on clear and convincing grounds believed at the time of the disclosure: (i) that the disclosure was necessary to avert an imminent and serious threat to the environment, to ensure that the threat to the environment was properly and timeously investigated or to protect himself or herself against serious or irreparable harm from reprisals; or (ii) giving due weight to the importance of open, accountable and participatory administration, that the public interest in disclosure of the information clearly outweighed any need for nondisclosure; (c) disclosed the information concerned substantially in accordance with any applicable external or internal procedure, other than the procedure contemplated in paragraph (a) or (b), for reporting or otherwise remedying the matter concerned; or (d) disclosed information which, before the time of the disclosure of the information, had become available to the public, whether in the Republic or elsewhere. (6) Subsection (4) applies whether or not the person disclosing the infor- mation concerned has used or exhausted any other applicable external or internal procedure to report or otherwise remedy the matter concerned. (7) No person may advantage or promise to advantage any person for not exercising his or her right in terms of subsection (4).

and the handling of other natural resources. The aim of the act is:
2. To provide for the management and conservation of South Africa's biodiversity within the framework of the National Environmental Management Act, 1998;
3. the protection of species and ecosystems that warrant national protection;
4. the sustainable use of indigenous biological resources;
5. the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources;
6. the establishment and functions of a South African National Biodiversity Institute; and for matters connected therewith.
The objects of the Act are delineated as:
1. (a) within the framework of the National Environmental Management Act, to pro vide for-
1. (i) the management and conservation of biological diversity within the Republic and of the components of such biological diversity;
2. (ii) the use of indigenous biological resources in a sustainable manner; and
3. iiii) the fair and equitable sharing among stakeholders of benefits arising from bioprosgecting involving indigenous biological resources.
2. (b) to give effect to international agreements ratified by the repulic which are binding on the Republic relating to biodiversity
3. (c) to provide for co-operative governance in biodiversity management and
4. (d) to provide for a South African National Biodiversity Institute to assist in Republic and of the components of such biological diversity; from bioprosgecting involving indigenous biological resources;
5. (b) to give effect to ratified international agreements relating to biodiversity which are binding on the republic;
6. (c) to provide for co-operative governance in biodiversity management and
7. (d) to provide for a South African National Biodiversity Institute to assist in Republic and of the components of such biological diversity; from bioprosgecting involving indigenous biological resources; which are binding on the Republic; conservation; and achieving the objectives of this Act.
1.Constitution of the Republic of South Africa, 1996, 2. No. 10 of 2004: National Environmental Management: Biodiversity Act, 2004.

Contact Vivian Wright to find out what you can do to contribute to the preservation of our natural environment

Representing Yourself

Many People Represent themselves for various reasons

To save costs

because the matter is simplified or atraightforward

because they are required to do so eg: the small claims; no legal representation is allowed

The Small Claims Court

Only claims under R15 000 are allowed at present (this amount is changed from time to time and is published in the government gazette), though the plaintiff can abandone part of his claim to bring it within the jurisdiction of the small claims court.

Certain types of Claims eg:for specific performance with are not allowed in the small claims court:

A court shall have no jurisdiction in matters:

1. in which the dissolution of any marriage, or of a customary union as defined in section 35 of the Black Administration Act, 1927 ( Act 38 of 1927 ), is sought
2. concerning the validity or interpretation of a will or other testamentary document;
3. concerning the status of a person in respect of his mental capacity;
4. in which is sought specific performance without an alternative claim for payment of damages, except in the case of-
   1. the rendering of an account in respect of which the claim does * not exceed the amount determined by the Minister from time to time by notice in the Gazette ;
   2. the delivery or transfer of any property, movable or immovable, * not exceeding in value the amount determined by the Minister from time to time by notice in the Gazette determined for the purposes of this section; [Para. (d) substituted by s. 9 of Act 92 of 1986.]
      1. in which is sought a decree of perpetual silence;
      2. in which is sought damages in respect of-
         1. defamation;
         2. malicious prosecution;
         3. wrongful imprisonment;
         4. wrongful arrest;
         5. seduction;
         6. breach of promise to marry;
            1. in which an interdict is sought.

No legal representatives are allowed in the small claims court; and

Only natural persons may bring a claim in the small claims court: No juristic persons; eg:no companies, corporations or partnerships

Magistrates courts

Actions in the local divisions of the magistrates court are limited to between R 15 000 and R 200 000.

The Regional division: R 200 000-R 400 000.

Certain documents including summons and particulars of claim must be filed with the clerk of the court and;

Summons and particulars of claim must be presented in the manner prescribed by the Act.

Certain fees in the form of a stamp duty must be paid and such stamps must be attached to the front of the summons before being filed.

Area of jurisdiction

(1) Subject to the provisions of this Act and the National Credit Act, 2005 (Act 34 of 2005), a court in respect of causes of action, shall have jurisdiction in-

1. actions in which is claimed the delivery or transfer of any property, movable or immovable, not exceeding in value the amount determined by the Minister from time to time by notice in the Gazette;
2. actions of ejectment against the occupier of any premises or land within the district or regional division: Provided that, where the right of occupation of any such premises or land is in dispute between the parties, such right does not exceed the amount determined by the Minister from time to time by notice in the Gazette in clear value to the occupier;
3. actions for the determination of a right of way, notwithstanding the provisions of section 46;
4. actions on or arising out of a liquid document or a mortgage bond, where the claim does not exceed the amount determined by the Minister from time to time by notice in the Gazette;
5. actions on or arising out of any credit agreement as defined in section 1 of the National Credit Act, 2005 (Act 34 of 2005);
6. actions in terms of section 16 (1) of the Matrimonial Property Act, 1984 (Act 88 of 1984), where the claim or the value of the property in dispute does 10 not exceed the amount determined by the Minister from time to time by notice in the Gazette; (fA) actions, including an application for liquidation, in terms of the Close Corporations Act, 1984 (Act 69 of 1984);
7. actions other than those already mentioned in this section, where the claim or the value of the matter in dispute does not exceed the amount 11 determined by the Minister from time to time by notice in the Gazette

Regional Division may hera divorce Cases

A regional division of the magistrates court hasj urisdiction to hear and determine suits relating to the nullity of a marriage or a civil union and relating to divorce between persons and to decide upon any question arising therefrom, and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998). A court for a regional division hearing a matter referred to in paragraph (a) shall have the same jurisdiction as any High Court in relation to such a matter.
As we all know there are other courts, such as the labour courts, consumer protection courts and family courts each with their own jurisdiction as to causes of action and rules as to representation.
And there are also prescription periods (three years in respect of most claims).
But if you are required to represent yourself or would like to do so for whatever reason assistance is available.
Documents are available here:

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Planning for your retirement: What happens when the recipient of a metal workers surplus payout dies before he collects

Many people secure their retirement or the futures of their children by belonging to a pension fund. The Metal Industries Provident fund is one such fund. What happens  is that money paid to them by members is invested and sometimes a suurplus becomes available.

What happens if a member dies before he has claimed his portion of surplus payments .

Well, the Pension Fund Amendments Act 2007 . makes provision that:
1) Pa
st and present members may claim and
2) All qualifying member stakeholders who died on or after 1 April 2008 will be treated as follows:
a) Former members who died on or after 1 April 2008:
The accumulated surplus will be paid to the member’s estate. If no estate exists a next of kin should register an estate with the Master of the High Court. If there is no next of kin the accumulated surplus will be paid to the Master of the High Court.
b) Active members at 1 April 2008 who died subsequently while they were still in active service:
The reason for exit from the MIPF for such a member was his/her death on or after 1 April 2008.
The accumulated surplus will be paid in terms of Section 37C of the Act. This implies that the Board of Trustees need to decide on the distribution of the accumulated surplus amongst the legal beneficiaries.
In these cases there will be a prior Section 37C distribution but additional investigations need to be done by the Trustees e.g. some of the beneficiaries in the prior Section 37C distribution may have died in the interim and such a beneficiary’s distribution should be paid to his/her estate
c) Active members at 1 April 2008 who exited the MIPF after the surplus apportionment date and who died after they exited from the MIPF:
The reason for these members’ exit from the MIPF was for example: resignation, retrenchment, transfer to another fund or retirement. They then passed away after such event.
The accumulated surplus will be paid to the member’s estate. If no estate exists a next of kin should register an estate with the Master of the High Court. If there is no next of kin the accumulated surplus will be paid to the Master of the High Court.

So basically the money will be made available to beneficiaries in various ways: either placed directly into the estate or through the master of the high court. And further investigation will be required in some cases moistly toi establish if beneficiaries are still alive

The Protection of Personal Information Bill

 The Protection of Personal Information Bill was passed into legislation recently but its commencement date has yet to be  announced

The Act is a highly commendable piece of legislation as it gives effect to the constitutionally enshrined right to
privacy.
It makes provision for who may have access to your personal information and under what circumstances and also the manner in which the responsible party is to store such personal information.
There are severe penaties for non compliance but "responsible parties" are given one year to meet the compliance requirements.