MAINTENANCE

A4What can you do to enforce a maintenance order against a person who is responsible for paying maintenance, but fails to do so or is paying too little?

When someone fails to pay maintenance in terms of a maintenance order you have the option of lodging a complaint against them with the Maintenance officer, stating that the person is legally liable to maintain, for example, yourself or your minor child(ren) and is not doing so. The Maintenance officer must investigate the complaint and may then institute an enquiry in a maintenance court. The Maintenance officer, not the complainant, decides whether to institute an enquiry.[1] In investigating a complaint about maintenance, the Maintenance officer may obtain statements or any relevant information pertaining to the payment of maintenance. An enquiry under the Maintenance Act is a procedure which empowers people to enforce their rights and those of their child(ren) at the State’s expense. During the course of a maintenance enquiry the parties usually come to an agreement and seek to withdraw the proceedings, or have the terms of the agreement made an order of court, which cannot be disregarded by the magistrate.[2] If the parties cannot come to an agreement the matter will be referred to the maintenance court.

Whenever a person against whom a maintenance order has been issued under the Act fails to make any payment in accordance with that order, the order is enforceable in respect of any amount that person has failed to pay, together with any interest:

  1. by execution against property;
  2. by the attachment of emoluments; or
  3. by the attachment of debt.

If a maintenance order made under the Act remains unsatisfied for a period of ten days from the day on which the amount became payable or the order was made, the person in whose favour the order was made may apply to the maintenance court in which the order was made: 1) for authorisation of the issue of a warrant of execution, 2) for an order for the attachment of emoluments or 3) for an order for the attachment of debt. The application must be accompanied by a copy of the maintenance order or other order in question and a statement under oath stating the amount that the person against whom the order was made has failed to pay.[3]

Subject to the defence that failure to make a payment in terms of a maintenance order is due to a lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of an offence and liable to conviction with a fine or imprisonment for a period not exceeding one year, or to imprisonment without the option of a fine.[4]

On the application of the public prosecutor and in addition to or instead of imposing a penalty, a court convicting any person of the offence of failing to make a payment in accordance with a maintenance order may grant an order for recovery from that person of the amount he or she has failed to pay, together with any interest.[5]

Your best option would be to approach the Maintenance officer in order to reconcile the outstanding amounts. Thereafter, if the person still fails to effect payment, you can approach an attorney to either proceed with execution of the order, if the person has sufficient movable or immovable property, or obtain an emolument order which will be served upon the employer of the person (ordering the employer to pay the maintenance), or you may approach the maintenance court for an order for the attachment of any debt accruing, then or in the future, to the person responsible for paying maintenance.

[1] The Maintenance Act 99 of 1998.

[2] Young v Young 1985(1) SA 782 (C).

[3] The Maintenance Act 99 of 1998.

[4] Ibid.

[5] Ibid.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

APPOINTMENT OF THE EXECUTOR OF MY WILL

A3This is a subject which causes more and more discussion and people become more knowledgeable about Executor’s fees and how it is calculated once a person dies and his or her estate is left to the Executor to wind up.

The maximum Executor’s fee is fixed by law. The current maximum permissible Executor’s fee is 3.5% of the gross estate value plus 14% VAT (should the Executor be registered for VAT).

It seems as though this fee is very fair or even at a very low percentage, but let us illustrate with an example:

Let us suppose that the gross estate value is R2 million. Due to the drastic increase in the value of fixed property over the last few years it is quite possible to attain a gross estate value of R2 million and very realistic if you own fixed property.

R2 million x 3.5% = R70 000-00

Plus 14% VAT = R9 800-00

Total Executor’s fee = R79 800-00

This Executor’s fee does not include any additional administrative costs such as transfer fees of the fixed property or funeral costs. Thus it becomes clear that the cost of administering an estate to the value of R2 million could easily escalate to R100 000. The result is that more and more individuals consider appointing the person who lives longest or another family member as Executor, assuming that the appointed Executor is then enabled to negotiate an Executor’s fee with an institution or law firm which will then act as the appointed Executor’s agent.

It does happen, however, that the appointed Executor (e.g. the surviving spouse) is not well-informed about the actions he/she should take when his/her spouse dies, therefore he/she often appoints the first agent who offers his/her services. No negotiation takes place and the agent imposes the maximum tariff as fixed by the law.

Our recommendation is therefore the following:

  1. Appoint the person who lives the longest or another family member as Executor of your estate, but ensure that the appointed Executor is fully aware of the fact that he/she may negotiate the Executor’s fee with an institution; or
  2. Should you have every confidence in an institution, appoint that institution as Executor of your estate, but negotiate beforehand and fix the agreed tariff in your will. Do not leave it up to any other person to negotiate Executor’s fees after you have passed away.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

TALKING TO “LOR”

A2_bIf you are a follower of our firm’s Facebook page ( https://www.facebook.com/schnetlersattorneys ) you would have noticed that the latest addition to our team of legal experts is Laura Ames. Laura was admitted as an attorney of the High Court on Tuesday, 5 July 2016 and I therefore thought it fitting to conduct a short interview with Laura so that our readers can get to know her a little better.

Where did you grow up?

I was born in Cape Town and the first half of my life I lived in Edgemead with my mom, dad, younger sister and circus of animals. I attended Edgemead Primary School and thereafter moved to Rondebosch and attended Rustenburg High School for Girls.

When did you decide to become a lawyer?

It was sometime in Primary School, I remember wanting to study either law or accounting. In High School when it came to applying to universities I made my decision to apply for law. To my family and friends I am known as “Lor” – everyone thought that studying “law” was quite fitting – “Lor” studied law!

Where did you study?

I studied through Unisa taking full time classes at Varsity College in Rondebosch. Here we received one-on-one attention from the lecturers as our classes were usually restricted to no more than ten students per class. We were lectured by practising and retired attorneys thus we received first-hand knowledge which we found to be very enlightening.

Why do you want to be lawyer?

Simply put – I want to help people – that is why I decided to study law in the first place.

What challenges do you face in your profession as a young female attorney?

It can at times be difficult to be taken seriously as a professional since I am   young. It is also a well-known phrase that “the customer is always right” thus at times I find it challenging to know what is the best manner in which to explain and convince a difficult client that they are unfortunately mistaken in a certain situation and provide my professional advice.

Where do you see yourself in ten years’ time?

Only time will tell, but hopefully I would have climbed the “legal ladder” and perhaps be a director of a law firm.

What advice do you have for young people who are considering studying law?

I would advise that the road to qualifying as an attorney is very long and not an easy path. Before deciding to study law one must decide whether one is prepared and ready for much hard work and many sacrifices. The profession can be very rewarding at the end of this lengthy journey.

It was quite insightful to have a quick chat with my colleague and I, together with our firm’s directors and support staff wish Laura all of the best for her career in the legal profession. Be on the lookout in our next newsletter for more interesting interviews with the people behind the success story that is Schnetler’s Inc.

Compiled by: Annerine du Plessis

THE EFFECT OF SECTION 14 OF THE CONSUMER PROTECTION ACT ON FIXED TERM RENTAL AGREEMENTS

A1_bThe Consumer Protection Act 68 of 2008 (CPA) has considerably impacted on the rental property market since its commencement on 31 March 2011. More precisely, section 14 of the CPA has had an effect on fixed term rental agreements. Section 14, however, is not relevant to fixed term lease agreements which have been entered into between juristic persons, regardless of their asset value or annual turnover. Further, section 14 will only be applicable to lease agreements which have been entered into for a fixed term – this means that section 14 will be applicable to many, if not the majority of lease agreements relating to immovable property. As the CPA only relates to  agreements, lease agreements which have been entered into on a month-to-month basis would unfortunately not fall within the ambit of this section.

The Act does not differentiate between leases for residential, commercial, retail or industrial properties; in actual fact the Act does not discuss lease agreements for immovable property as such. It is clear from the definitions and purpose of the Act, however, that it was intended for lease agreements to fall within the ambit of the Act. The nature of the transaction between the lessor and lessee calls for regulation and protection thereof; consequently sensible to assume that it was intended for the section to apply to all lease agreements irrespective of the property type.

Section 14(2)(b) of the CPA reads “despite the provisions of the consumer agreement to the contrary – the supplier may cancel the agreement 20 business days after giving written notice to the consumer of a material failure by the consumer to comply with the agreement, unless the consumer has rectified the failure within that time.”

The lessor will thus not be in a position to cancel the lease agreement during the subsistence of the lease agreement, unless the lessee is in breach of a material term of the agreement and fails to remedy such breach within the permitted period after having received written notice to that effect. This means, should the lessor wish to take occupation of the property, or sell same, he will not be permitted to cancel the agreement.

Should the lessee be in breach of a material term of the agreement, and the lessor wishes to cancel the agreement, the lessor needs to give the lessee written notice, describing such breach and allowing the lessee 20 business days to remedy same. Further, the lessor should set out in the notice that should the lessee fail to remedy the breach within the stipulated time, the consequence will be cancellation of the agreement.

The CPA has a considerable impact in fixed-term lease agreements. It is vital for property owners to be conscious of the effect of this Act so that they may comply with it and set measures in place to mitigate the potential burden placed on property owners by the Act.

Compiled by: Laura Ames

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)